The Joint Official Liquidators of Abraaj Holdings (in Official Liquidation) Plaintiffs (FSD 150 and 158) v The GHF Group Ltd Defendant (FSD 150) and Neoma Private Equity Fund IV L.P. Defendant (FSD 158); and Between: Abdulhameed Dhia Jafar Plaintiff (FSD 203) v Abraaj Holdings (in Official Liquidation) and Others Defendants (FSD 203)

• Jurisdiction: Cayman Islands
• Judge: Mr Justice Segal
• Judgment Date: 29 June 2022
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSES NO: FSD 150, 158 AND 203 OF 2020 (NSJ)

The Joint Official Liquidators of Abraaj Holdings (In Official Liquidation)

Plaintiffs (FSD 150 and 158)

and

The GHF Group Limited

Defendant (FSD 150)

and

Neoma Private Equity Fund IV L.P.

Defendant (FSD 158)

And Between:

Abdulhameed Dhia Jafar

Plaintiff (FSD 203)

and

Abraaj Holdings (In Official Liquidation) and Others

Defendants (FSD 203)

Before:

The Hon. Mr Justice Segal

CAUSES NO: FSD 150, 158 AND 203 OF 2020 (NSJ)

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

Appearances:

Mr Tom Smith QC instructed by Carey Olsen appeared for the AH Parties

Mr Stephen Atherton QC instructed by Walkers appeared for the GHF Parties

Mr Andrew Ayres QC instructed by Ogier appeared for Fund IV Mr Michael Bloch QC instructed by Nelsons appeared for Mr Jafar

JUDGMENT IN RESPECT OF ISSUES ARISING AT THE DISCOVERY CMC HEARD ON 23 AND 24 MARCH 2022

Introduction

1 This is my judgment dealing with various issues arising on the summons dated 18 February 2022 (the Summons) issued by the joint official liquidators (the JOLs) of Abraaj Holdings (in official liquidation) (AH) in FSD Cause No. 150 (the GHF Proceedings), FSD Cause No. 158 (the NPEF IVProceedings) and FSD Cause No. 203 (the Jafar Proceedings). I shall refer to the JOLs and AH as the AH Parties and to the GHF Proceedings, the NPEF IV Proceedings and the Jafar Proceedings together as the Related Proceedings. The Related Proceedings are being tried together pursuant to GCR Order 4, rule 4(1) and are jointly case managed.

2 The claims made and background to the Related Proceedings are set out in various judgments I have handed down, most recently the j udgment dated 11 February 2022 in the GHF Proceedings. The GHF Group Limited ( GHF) is the defendant to the GHF Proceedings and Neoma Private Equity Fund IV L.P ( NPEFIV) is the defendant to the NPEF IV Proceedings. Mr Jafar is the plaintiff and AH, GHF General Partner Limited ( GPL, referred to with GHF as the GHF Parties), GHF and Abraaj General Partner VIII Limited (GP8) as the general partner of NPEF IV are the defendants in the Jafar Proceedings. Abraaj Investment Management Limited (in official liquidation) (AIML), which is a subsidiary of AH, is also involved in the events giving rise to and claims made in the Related Proceedings (I refer to the joint official liquidators of AIML as the AIML JOLs).

3 A case management conference had been held on 29–30 November 2021. Following that CMC, I ordered that the parties should seek to agree a discovery protocol by 5pm on 9 February 2022. However, they were unable to do so despite extensive negotiations. Accordingly, the AH Parties issued the Summons.

4 The Summons seeks directions in relation to the manner in which discovery is to be conducted by the parties to the Related Proceedings and case management directions to trial. The Summons was heard on 23–24 March 2022. At the hearing of the Summons, Mr Tom Smith QC appeared for the AH Parties (instructed by Carey Olsen); Mr Michael Bloch QC appeared for Mr Jafar (instructed by Nelsons); Mr Stephen Atherton QC appeared for the GHF Parties (instructed by Walkers); and Mr Andrew Ayres QC appeared for GP8 and NPEF IV (instructed by Ogier) (Fund IV).

5 The Summons seeks an order inter alia that “ Discovery is to be made by the parties to these proceedings in accordance with the discovery protocol to be annexed to the order made on [the Summons],” The latest version of the draft discovery protocol (the Discovery Protocol) was filed with the Court for the purpose of and considered during the hearing (I refer in particular to the version of the Draft Protocol handed up by Mr Ayres QC at the hearing on 24 March). The AH Parties also filed a draft order (once again I refer to the form of order annexed to the Fund IV's skeleton and with the documents handed up by Mr Ayres QC, the Draft Order). In addition to an order that “The Parties shall give discovery in accordance with the Discovery Protocol”, the Draft Order specifies a date (14 October 2022 being the date proposed which may now need to be revised) by which the parties conducting discovery under the Discovery Protocol are required to produce their documents and includes an order listing a further CMC in respect of technology assisted review (TAR) issues (which is agreed by the parties save for Mr Jafar), an order relating to the protection of privileged and irrelevant confidential information, and directions for the further conduct of the Related Proceedings to trial.

6 Evidence was adduced by all the parties. The AH Parties relied on the First Affidavit of Simon Conway (Conway 1) and Mr Conway's Second Affidavit (Conway 2). Mr Conway is one of the JOLs. The GHF Parties relied on the Ninth Affidavit of Mr Richard Lewis (Lewis 9) and Mr Lewis' Tenth Affidavit (Lewis 10). Mr Lewis is a director of GPL, which is itself the director of GHF. Fund IV relied on the Fifth Affidavit of Mr Neil Hayward (Hayward 5), the First Affidavit of Mr Sean Theron (ST1) and Mr Theron's Second Affidavit (ST2). Mr Hayward is a partner in KordaMentha Corporate in Sydney and Conflict Director of GP8. Mr Theron is a Principal, eDiscovery and Forensic Technology at Alvarez & Marsal Cayman Islands Limited, which is acting for Fund IV in relation to their discovery obligations. Mr Jafar relied on the Fourth Affidavit of Mr Steven Barrie (Barrie 4), the First Affidavit of Mr Giles Montgomery-Swan (MS1), the Second Affidavit of Mr Montgomery-Swan (MS2) and an affidavit of his own which was only filed (unsworn) shortly before the hearing. Mr Barrie is an attorney with and a Director of Nelsons, the Cayman Islands attorneys advising Mr Jafar. Mr Barrie's affidavit was only sworn and filed shortly before the hearing, on 18 March 2022. Mr Montgomery-Swan is the CEO of Affinity Technology Services (which traded under the trademark “ e-Finiti”) and a specialist in IT. He previously worked for entities within the Abraaj Group and was tasked with overseeing IT for all such entities save for IT within the portfolio companies. Since the basis on which Mr Montgomery-Swan gave evidence and the weight to be given to his evidence was challenged by the GHF Parties and by Fund IV, I shall need to say more about his qualifications, expertise, and role in due course.

7 At the end of the hearing, the parties indicated that they wished to have more time to discuss and seek to reach agreement as to the manner in which privileged and confidential documents were to be discovered. I agreed to allow them further time for this purpose and on 7 April 2022 I was informed by Ogier that the parties had reached agreement on these matters. I was provided with a separate form of protocol relating to the discovery of privileged and confidential documents by the AH Parties, which provides that before any documents may be provided to Mr Jafar or any third party instructed by him, or assisting him, for the purposes of the Related Proceedings it must first be reviewed by Mr Jafar's Review Team (as defined in the form of undertakings as agreed by the parties and provided to the Court on 7 April 2022) who will consider whether it is privileged or confidential but irrelevant. I assume that the Draft Order will need to be amended to reflect this agreement.

8 At the hearing I confirmed and directed the drawing up of a formal order in respect of my earlier decision that Mr Jafar be required to produce a settlement agreement to which he was a party with Mr Arif Naqvi (Mr Naqvi). Following the production of the settlement agreement, the GHF Parties indicated that in light of their review of the settlement agreement they wished to seek permission to adduce further evidence, and to make further submissions in relation to the orders to be made on the Summons and the matters dealt with at the hearing. On 25 April 2022, Walkers wrote to the Court on behalf of the GHF Parties making an application for such permission and seeking further substantive orders to be made on the Summons. I granted the GHF Parties' application for permission to adduce further evidence and make further submissions and gave directions which allowed the other parties to do the same and a timetable within which to do so. My decision on that application is dealt with in a separate judgment (the Judgment on Part of the GHF Parties' Application by letter dated 25 April 2022), which was originally circulated in draft on 20 May 2022 but has now been supplemented as a result of the parties' further submissions. That judgment is being handed down at the same time as this judgment. The need to deal with that application has resulted in a delay in disposing of the Summons and the delivery of this judgment.

9 In summary I have decided that:

• (a). the Summons is not, as the GHF Parties argued, seeking orders restricting and limiting the AH Parties' discovery obligations. The JOLs' application is not in form or substance an application pursuant to GCR O.24, r.2(5). The AH Parties and indeed all parties seek directions from the Court as to the manner in which they should, subject to further review and challenge, carry out their discovery obligations and ask the Court to make orders for and to a process that is in accordance with the overriding objective and properly proportionate. This requires the Court to undertake a balancing exercise weighing and taking into account the various factors I discuss below.

• (b). the discovery process must be conducted and the parties' discovery obligations must be performed by reference to the issues in the case as established by the pleadings. The search must be for discoverable documents. The test for relevance in the Discovery Protocol should be defined with this in mind. Whether a document is relevant for discovery purposes depends on whether the information which it is reasonable to suppose it contains is relevant to a party's case including by enabling the party to advance...