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Without Prejudice, Confidentiality and Privilege in the GCC

May, 15,2019

By Daniel Brawn

Without Prejudice, Confidentiality and Privilege in the GCC


A Legal 500 Middle East Summit

 

Organised by Legal 500, the recent Middle East Summit was aimed at a global in-house counsel audience, who heard from a diverse panel of speakers who covered topics designed to lead in-house counsel through the process of preparing, presenting and enforcing an award. 

Dr. Daniel Brawn of Galadari Advocates spoke on a panel discussion relating to “Without Prejudice, Confidentiality and Privilege in the GCC”. The panel comprised a Moderator from Atkin Chambers in London, four in-house lawyers who spoke of their experience, and Dr. Daniel who provided a UAE perspective. 

Under English law, the “Without Prejudice” provides that, where parties negotiate to settle a dispute, anything said in those negotiations is confidential and may not be referred to in any legal proceedings. This rule does not apply in the UAE. 

Dr. Daniel’s advice to in-house counsel is “to be very careful what they admit during settlement negotiations”. He gave the example of a contractor who was contacted by a subcontractor who had their auditors in their office and asked the contractor to confirm the amount of the subcontract sum on a project that had just completed. To assist the subcontractor, the contractor wrote on headed paper that the amount was US$ 5 million. He headed the letter “Without Prejudice” and explained that this amount was subject to substantiation under the terms of the subcontract. The next day that letter was before a Dubai judge as a clear admission of debt, and the judge ordered the contractor to pay US$5 million. 

Disclosure of documents was a main discussion point. In common law proceedings parties may seek an order that the other party must provide copies of all documents in its possession, which can be a lengthy and expensive process. Dr. Daniel explained that in the UAE, this does not happen. There are provisions in the Law of Evidence whereby one may apply for disclosure of a particular document, if one can establish why it is necessary, but such orders are not commonly granted and are difficult to enforce. 

Another possibility is to request the judge to appoint an expert, who may request documents, which he will append to his report. However, if the other party does not provide copies, the engineer can do little about it. Ultimately the panel agreed that this culture of privacy and confidentiality is typical of the GCC region as a whole; one keeps what one has, and one does not share it unless one chooses to.

 

To discuss the points raised in the summit, or for further discussion around the confidentiality and privilege subject matter please contact Dr. Daniel