UNITED ARAB EMIRATES Law and Practice Contributed by: Stuart Paterson, Janine Mallis and Tania Forichon, Herbert Smith Freehills
judgment is rare in fraud cases, given that such serious allegations must typically be proven with clear, cogent, and convincing evidence, and the court will want to examine the case fully. The DIFC and ADGM courts are also empowered to strike out (parts of) pleadings where there are no reasonable grounds for bringing/defending the claim, it is an abuse of the court’s process, or there has been a failure to comply with court rules. 2.7 Rules for Pleading Fraud There are no special rules or professional con - duct considerations for pleading fraud. However, a lawyer is required to maintain integrity under the code of ethics and professional conduct of the legal profession in the UAE. Further, in the DIFC and ADGM, a legal practi - tioner has a duty to never knowingly or reckless - ly make any incorrect or misleading statement of fact or law to the court. 2.8 Claims Against “Unknown” Fraudsters Onshore UAE There are no special rules to deal with claims against unknown fraudsters. A claimant may commence a criminal claim, and the prosecution authority may then be able to assist by using the broad powers given to them to identify unknown fraudsters as they investigate the claim. How - ever, there is no right to such assistance. DIFC and ADGM A Norwich Pharmacal order may also be made under the ADGM and DIFC courts’ jurisdiction in instances where the party knows that a fraud has taken place against it, does not know the identity of the wrongdoer, but can identify a third party who has this information (regardless
of whether this third party is itself innocent). This order enables a party to plead its case against the wrongdoer, trace assets, or bring proprietary claims. Recently, the DIFC Courts ruled that it had the power to issue Norwich Pharmacal orders in support of foreign proceedings (see SKAT v FFA Private Bank (Dubai) Limited [2024] DIFC CFI 004 (25 July 2024)). Common law courts also typically permit a party to bring an application for disclosure or inspec - tion of property against non-parties, including a bank, for documents relating to a customer’s account (known in English common law as “Bankers Trust” order). 2.9 Compelling Witnesses to Give Evidence If a witness is summoned to appear before the public prosecution and fails to attend without a legitimate excuse, the witness can be fined and, in certain cases, arrested on the order of the court (see Article 91 of the Criminal Proce - dures Law). Onshore – Civil Federal Decree Law No 35 of 2022 (the “Civil Evidence Law” ) provides measures (including fines) for witnesses who fail to appear before the court when summoned. If the witness fails to appear on two occasions, the court can order the arrest. However, the witness may be exempt from the fine if they appear on the next occasion and provide an acceptable reason for their previous failure (Article 74(4) of the Civil Evidence Law). DIFC and ADGM In the DIFC and ADGM, the court may issue a witness summons. Failure to comply with such summons may result in contempt of court, which
406 CHAMBERS.COM
Powered by FlippingBook