Direct Investments Limited v Vartika Mittal-Goenka & Ors

1. MR JUSTICE WAKSMAN: This is a dispute between the parties about adducing particulars of, and expert evidence in relation to, foreign law. It is, in my judgment, quintessentially a matter of case management. And indeed, as Mr Sprange said, it is a question of case management and boils down in the end to a dispute between the parties as to who should go first in relation to some particulars of foreign law. The particular and additional feature of this dispute, however, is that it arises out of a situation where Mr Justice Jacobs, on 10 October of last year, addressed precisely this question in my judgment and gave an order dealing with how the question of foreign law was to be advanced, which order has been signally disregarded by the defendants.

2. What has happened in reality is that they have decided, or thought better, about the approach to expert evidence on foreign law, but they have at no stage sought to appeal Mr Justice Jacob's order, or seek to set it aside or vary it, if that route was even available to them.

3. That is my introduction to this dispute and I begin by saying something about the action, how it has been pleaded and how the matter ended up before Mr Justice Jacobs.

4. The claimant is a BVI company. It makes a series of very substantial monetary claims against a number of individuals: Vartika Mittal, Sangeeta Mittal, Shristi Mittal and Divyesh Mittal. The argument is, effectively, that they procured from the claimant, without any legal basis, the transfer of very large sums of money into their own personal accounts and that there was no basis for this. Claims are made for constructive trust, proprietary claims, knowing assistance, conspiracy to use unlawful means and matters of that kind.

5. The core defence, so far as the facts are concerned, is that this transfer of funds was entirely justified because it was the result of a number of agreements that had been made between these protagonists some time earlier. The existence of those agreements is denied by the claimant and it also denies the authenticity of a number of documents that had been advanced in support of the existence of the agreements.

6. Procedurally speaking, there was an application for a worldwide freezing order made which was granted by Mr Justice Foxton. One of the points which arose was the governing law. On the basis of Rome II, the claimant's case was that this was governed either by English law or by BVI law, which would be materially the same. In compliance with its duty of full disclosure, it adduced the report of a Professor Klein, who said that if the position were governed by Swiss law -- which was not the claimant's case -- there would be some differences in the forms of claim, and he referred in particular to the absence of a proprietary claim under Swiss law in the way that there would be under English law, although he went on to say that looking at the matter overall, there would be equivalent causes of action. Mr Justice Foxton, when dealing with the injunction, noted that report, as it had been disclosed, pointed out that there may be differences, particularly in relation to the grant of proprietary relief or otherwise, but did not consider that that was in any way an obstacle to granting the injunction, because he thought that the claimants had a good arguable case that the governing law was English law in any event, and that was sufficient for the purpose of the injunction.

7. Just as a matter of history, I should say that the injunction was discharged on the basis that security has been provided by the defendant, which may or may not reduce the relevance of any proprietary claim hereafter.

8. I then need to turn to the statements of case, and I go first to the defence. The underlying facts, insofar as they support the claimant's claim, are denied, and the existence of the agreement or agreements which would provide a defence are pleaded.

9. But then I go to paragraph 36 of the amended defence, but this part was unchanged from the original, which is this: and this was in relation to a claim that "the Transfers were void or voidable", and that is denied.

10. Then at 36.2.2, it was said without prejudice to that: "It is denied, in so far as it is alleged, that the governing law is English law or BVI law. If and if so far as the Transfers were void or voidable ... the relevant claim would be: "36.2.2.1. Governed by Swiss law being the law governing the location of the receipt of the sums. The Claimants ... and Defendants aver that the sums were received in their accounts ... in Switzerland. Further, as a matter of Swiss law and/or for the reasons pleaded in paragraph 36.3 below, it is denied that the Claimant is entitled to the proprietary relief sought. "36.2.2.2. Alternatively, governed by Dubai and/or UAE law being the location of Mr Poddar and/or Mr Das who gave instructions on behalf of DIL which resulted in the transfer. Further, as a matter of Swiss law [I suspect that is an error and should say 'Dubai or UAE law'] and/or for the reasons pleaded in 36.3 below, it is denied that DIL is entitled to the proprietary relief sought."

11. So we then go to see what is said in 36.3. It says this: "Alternatively, if and in so far as the governing law is English or BVI law, the Defendants deny that there was any legal basis for the Claimant's claim ..."

12. It says nothing about Swiss law or UAE law, so it is entirely unclear from that pleading whether the defendant is saying if it was Swiss or UAE law, there would be a materially different outcome. There is no suggestion of a materially different outcome in paragraph 36.3 which relies on the English law position. The only way to read paragraph 36.3, other than to say that it entirely omits to deal with the Swiss and UAE law position, is to say that if that is all it is saying, then by inference the defendant is actually accepting that there is no material difference between the two systems of law, in which case the question is why they have pleaded those systems of law in the first place.

13. That was the state of uncertainty, which presented itself by way of the defence, but I then need to go to the reply. And here, at paragraph 26.7.1, it is said: "The first sentence of ... 36.2.2.1 is denied. As to the third sentence, it is averred that in the event that Swiss law applies (which is denied), [they] can bring equivalent causes of action against the Defendants ... [and] DIL proposes to adduce expert evidence of the same in due course.

14. There the matter rested, until shortly before the CMC before Mr Justice Jacobs. At this point I need to refer to some email correspondence. Shortly before the hearing, and in order to find out what the position was about expert evidence, Stewarts acting for the claimants said this: "We note from your skeleton argument that your clients agree the directions in the Claimant's draft order in relation to expert evidence."

15. Now, that order had proposed that there should be a sequential production of expert evidence on foreign law, which is understandable because the alternative systems of law were pleaded for the first time by the defendant, and the claimant's skeleton argument for the CMC said that the right course to deal with this would be for the defendant to go first. But they raised a sensible preliminary point in this email, on 9 October, to say: "In order for your clients to be granted permission to rely on expert evidence of foreign law, they will need to confirm on what foreign law they intend to adduce such evidence."

16. And then came the reply: "We confirm that our clients intend to adduce evidence of Swiss and UAE law."

17. So the proposal which was then put to Mr Justice Jacobs on behalf of both parties was that the defendant should put in expert evidence on Swiss and UAE law first, and then the claimant would respond.

18. There is then a material exchange between Mr Justice Jacobs and counsel on this point. He has seen what the parties propose, but he says to Mr Maynard, appearing for the defendants at that stage, on the question of Dubai and Swiss law, Mr Justice Jacobs says this: "I am not persuaded at the moment that your pleading ... raises any real issue to Swiss law or Dubai law that I can sensibly give an expert direction about."

19. And one understands that, because having raised the question of foreign law, effectively the defendant didn't take the point any further, and the question was whether there was anything in it.

20. They then look at the passages in the defence to which I have referred and I should add that those passages are repeated seriatim for each of the claims made by the claimants, and Mr Maynard takes him through this. And so he says there are three questions to be answered as a matter of Swiss or UAE law. It does not seem to be contested that they have anticipated the defendant's adducing expert evidence on UAE law and Swiss law, which is perfectly correct, in the light of the email exchange I have referred to.

21. And then Mr Justice Jacobs says: "Yes, but those bits you refer to just say for the reasons pleaded in paragraph 36.3. 36.3 tells me that insofar as the law is English law, there is no basis for it."

22. So it does not identify any principles of Swiss law or Dubai law, which are applicable. Secondly, it says the result is the same as English law. So the question is asked: “what difference does it make?” The main answer given is that “the difference it makes may not be one of outcome, but it is nonetheless pertinent as to how you get there? If we are correct that the governing law is UAE or Swiss law, that may result in the same outcome as the application of English law, but we nevertheless want to be able to adduce the evidence to show that that conclusion is correct and that requires us to introduce expert evidence on those two governing laws.”

23. Mr Justice Jacobs comes back and says, "you still have not told me what the principles of Swiss or Dubai law are and whether they make any difference", and Mr Maynard says, "No, I acknowledge the paragraph does not identify those principles, and that is something that will be done in conjunction with relying on the use of expert evidence, which the defendants intend to adduce". Mr Justice Jacobs says that his view was that: "... unless and until there is a properly particularised case of Swiss law or Dubai law which says what the principles are and why [they differ], or which sets out principles which clearly are different to English law ... there shouldn't be any permission to have expert evidence. If you want to look at your pleadings and think about whether you are any better off under Swiss or Dubai law and can set out some principles which enable you to be better off, then you can come back and ask for permission ... and we can see what the timetable looks like. But I don't think the current pleading provides any proper basis for the court granting the permission. Normally, when one grants permission on foreign law, [parties will often] identify what the issues are and the points are addressed so that people know there is a dispute about [the different provisions of those governing laws]. So you will have to give thought to the extent to which your clients are really going to rely upon Swiss law and Dubai law. [At the moment, it seems] all about the facts."

24. Mr Maynard says that he understands that and then the consequence should be that there is: "... a provision that entitles us [the defendant] or gives us a deadline by which to serve an amended defence to update precisely, provide precisely the information you are seeking. I think consequently we would also want to push out the deadline ..."

25. Mr Justice Jacobs says he is going to leave it on the basis that "you have to decide whether you're going to make an amendment" and he says he is not going to set a date. The question is whether they're going to proceed with this. That is what he does and there is nothing further said about that.

26. Then, when one comes to the order itself, what he says is this: "By 4 pm on 31 October 2025, the Defendants, if so advised, are to provide to the Claimants in correspondence either (i) a draft Re-Amended Defence, which is amended solely to provide particulars of the relevant principles of Swiss and UAE law the Defendants rely upon or (ii) identify by way of voluntary particulars the relevant principles of Swiss and UAE law [they] rely upon. The covering correspondence should identify the issues of Swiss and UAE law that the Defendants proposed be addressed."

27. Then they can put that proposition to the claimants.

28. So far as expert evidence is concerned, if the claimant agrees that the defendants should be permitted to adduce expert evidence to address the issues of Swiss and UAE law, then each of them has permission to rely upon expert evidence on Swiss and UAE law. They would be filed sequentially: the defendants go first and then the claimants follow and with the right to call the experts to give oral evidence.

29. If the claimant did not agree that the defendant should be permitted to adduce expert evidence, then the matter would have to come back to the court.

30. Nothing could be clearer, in my judgment, as to what the understanding of Mr Justice Jacobs was about the position. What has happened thereafter is that this order has simply not been complied with and we are now some five months after the making of that order.

31. Instead, what has happened is that the defendants have changed their. Although a number of different points were made by Mr Sprange as to why they did this, and I'll come to them in due course, the fact of the matter is that the defendant's present position is an all-out challenge to the order which has already been made against them and which, as with the dispute before me, is quintessentially a matter of case management.

32. Let me just say where the parties' present positions are, depending on how I find. The claimant says that the defendant has now lost the opportunity to make a case on the basis of putatively different Swiss or UAE law, and effectively they should be taken out of the equation. That is reflected in the first way that they have put the matter in their draft order.

33. But alternatively, and giving, as it were, the defendant a final opportunity to decide where it wants to go with this, it has provided a mechanism whereby the defendant will, within seven days of this order, give particulars of the principles of Swiss and UAE law they will rely upon to seek to disapply the presumption that such laws would be materially the same as to English law. If they do not provide those particulars, then the claim goes forward on the basis that effectively it is English law because there would be a presumption that Swiss or UAE law would be materially the same. But if the defendants do provide particularisation in accordance with paragraph 1, then the claimant shall within 14 days provide their responses to that particularisation.

34. What would follow, in that event, although it is not expressly stated, obviously would be provision for expert reports on the now-pleaded particulars between the parties.

35. The defendant's position is to the opposite effect. It says that it is for the claimant to go first and provide particulars of Swiss law and UAE law, which they maintain still are not the governing laws, to explain effectively how, under those governing laws, they would still get home on their claims. They invoke in that regard a remark that had been made at an earlier stage by leading counsel which was that, if Swiss law applied, there would have to be a repleading of the case, now under Swiss law.

36. Those are the two polarised positions of the parties. As I indicated at the beginning, this is classically a matter of case management, but it is also a matter of giving effect to and recognising the approach that had led to the order made by Mr Justice Jacobs.

37. The core submission made by Mr Sprange KC is this: that the only proper way to deal with this matter is by forcing the claimants to go first. He does not deal with Mr Justice Jacobs order, save to say that the position has somehow changed. It has not, in fact, changed at all. It is suggested that there was no consideration by the court of the decision of the Supreme Court in Brownlie and, inferentially, if there had been that consideration, Mr Justice Jacobs would have come to a different decision.

38. There are two answers to that. First of all, Brownlie was not raised before Mr Justice Jacobs. If the defendants wanted to make something of it, they could and should have done so then. Secondly, in my judgment, it would not have made any difference at all.

39. The reason I say that, before looking at some of the passages in that judgment, is because there is nothing in the judgment of the Supreme Court which purports to dictate how courts dealing with the adducing of foreign law expert evidence should exercise their case management powers, as if they had to do so in some mandatory form. It would be quite extraordinary if that is what the Supreme Court were purporting to do. Indeed, Mr Sprange KC referred me to passages in the White Book which emphasise the broad discretion which the courts have in relation to the pleading of foreign law and the adducing of expert evidence on foreign law if, in fact, such expert evidence is required.

40. So one is facing this position, as I say, on the basis that there is already an order made which has dealt with the matter.

41. Now, Mr Sprange KC's core point, really, is this: he says that the onus should be on the claimant because it has said in correspondence that it can, and if necessary will, rely upon what is known as the presumption of similarity, which is different from the question of a default rule applying English law, on the basis that unless it is going to be challenged, the presumption is that foreign law would be to the same effect as English law. Mr Sprange KC says that it would be an unsatisfactory position if the matter was simply left on that basis for this reason.

42. The claimants deny this, and I will just use the example of Swiss law, because in fact, Mr Sprange KC did not address the question of UAE law at all. In relation to Swiss law, the claimant takes the position that Swiss law does not apply. At the moment, because there has been no preliminary issued ordered in relation to governing law (and I can understand that given where we are now and the scope of the trial), the trial judge will have to decide as a preliminary point what the governing law is.

43. Suppose the trial judge then says it is Swiss law. In relation to that, the claimant would have nothing to fall back on other than the presumption of similarity. If the defendant were able to persuade the trial judge, as part of its case, that the presumption of similarity did not apply, then the claimant would be left, as it were, high and dry. It would only have the option of making an unattractive application, mid or after trial, now to adduce evidence on Swiss law. That is not the correct approach to managing the trial.

44. I quite see that, but it does not address, first of all, the fact that the question of how to deal with these matters has already been dealt with by Mr Justice Jacobs; and secondly, the points that have been made by Mr Sprange KC also do not address the fact that the court can decide who should go first in relation to that matter.

45. As a matter of case management, it is clear to me, if it was needed for me to say it, that one can understand why not only should the defendant go first (by the way, it positively offered to go first prior to the CMC) because it is the party which has raised the question of Swiss and UAE law but in a context where it is not clear whether there is any point in raising those matters if the outcome were to be the same.

46. Continuing in the vein of case management considerations before I go to Brownlie , Mr Sprange KC said it would be unfair for his clients to give particulars first as opposed to seeing the claimant's particulars because it would not know where to go. That is a thoroughly unrealistic submission, if I may respectfully say so, and I say it for the following reasons.

47. First of all, if it wanted to have any indication of Swiss law provisions and was unfamiliar with them (which I doubt), it has already seen something of that in the report by Professor Klein. Secondly, it cannot be said that the defendant seriously thinks it was unable to go first because that is precisely what it offered before Mr Justice Jacobs. Thirdly, if there was any point in pleading Swiss and UAE law in the defence other than simply to say, "By the way, it is the same", the only point for the defendant pleading those matters must have been because inherently it was going to take the view that they would produce a different outcome. Indeed, Mr Sprange KC, in the course of his submissions to me today, has said that there is a strong argument that that is the case and that, if the claimant were to be forced to litigate under Swiss law, it may well not succeed or not succeed entirely.

48. So I am afraid the notion that the defendants would be completely at sea as to what to say about Swiss law is unrealistic.

49. On that basis, that in itself, by way of case management, disposes of the argument that it would be somehow unfair for the defendant to go first.

50. Now, it is against that background, actually a significant background, that I turn to look at the decision in Brownlie . I do so briefly in the light of the fact that I have already observed that it is impossible to read from that case that the Supreme Court was dictating to a court as to how to exercise its case management powers against the very different circumstances in which the question of foreign law can arise.

51. The first point to note about Brownlie is that it arose out of an appeal against an original decision by the first instance judge to grant permission to serve out of the jurisdiction. The complaint that was made was that, while the claimant had contended that Egyptian law was applicable and had given some evidence about it, but not in a very clear way, the defendant, in seeking to set aside service, said that that was insufficient from the point of view of mounting a case on the merits which was suitable to go forward for consideration under service out.

52. The Court of Appeal rejected the appeal and the Supreme Court rejected the appeal from the Court of Appeal. The only thing the Court of Appeal did was to make an additional case management decision which was to say that going forward, as the case has now been launched and as the claimant was expressly relying upon Egyptian law, it should provide the details of Egyptian law which supported its claim.

53. The first point to note, of course, is that that is the opposite in this case because the party which first sought to rely upon foreign law is not the claimant here, but is rather the defendant by raising Swiss and UAE law in the first place.

54. In the interest of time, I am going to keep my references to Brownlie to a minimum.

55. It was in the context of that decision that Lord Leggatt then gave some extended consideration to the origin and the derivation of, first of all, the notion that there is a default rule that, whatever is the governing law, English law applies (that is not something which is debated before the parties today) and secondly, what the presumption of similarity is.

56. The reason why he went into this is because there was in fact a cross-appeal from the claimant, who not only said in resisting the appeal that it had done enough so far as Egyptian law was concerned, to get permission to serve out; it actually said that the claimant could rely upon the presumption of similarity, as it were, all the way through, and should not provide any particulars.

57. What he then says about pleading claims in foreign law is this. "... a claimant may choose when commencing proceedings not to assert that the claim is governed by foreign law, even if under the relevant rules of private international law that would be the case, and simply to plead a [case] based on English law. If the defendant does not respond by pleading that foreign law is applicable, the defendant may find that the time comes when it's too late to raise that case ... [but if] the defendant pleads ... that foreign law is applicable, the claimant must decide whether to contend otherwise and whether to advance a claim for relief under foreign law. In the present case it is agreed that the law which the court must apply is the law of Egypt and the claimant has amended ... to [plead] damages [according] to Egyptian law."

58. So that is the context. And then he says: "At that point, it was ... incumbent on the claimant to specify in her statement of case any rules or provisions of Egyptian law on which she [intended] to rely [upon and they could] simply ... rely [upon] the presumption ... but [that would not] alter the ordinary rules of pleading. [The] claimant chooses not to plead a case based on any specific rules ... hoping to be allowed to do so later if it becomes expedient, the claimant takes the risk of needing to persuade the court at a future date to grant permission to amend ... there is no special dispensation ..."

59. And that really is the key point in my judgment. Lord Leggatt was not purporting to lay down any rule about the way in which a court might decide who should provide particulars first, where it is the defendant who goes to who is the first party to rely upon the foreign law

60. I ought to refer to just one or two more passages relied upon by Mr Sprange KC . In relation to 116, he said he is talking there about the rationale for applying English law by default -- that's the default rule – Lord Leggatt is making observations about that rule. I do not see that has any relevance to the matters before me.

61. The, at paragraph 125, he said: "... the presumption of similarity does not itself determine any legal issue. It only ever operates unless and until evidence of foreign law is adduced. Nor does the presumption alter the legal burden of proof. Where the presumption applies, it merely places the burden of adducing [the] evidence on [the] party who wishes to displace it."

62. That, in my view, is a factor which goes against what Mr Sprange KC was saying and not in favour of it. But again, it is not seeking to dictate how the court can exercise its case management powers.

63. I am not going to say anything more about Brownlie because, as I have already indicated, it does not in any way fetter my powers of case management, nor would it have fettered the powers of case management pertaining at the time when Mr Justice Jacobs had to deal with precisely this question.

64. Let me just make a few other points. What is noticeable in this context is that although all the discussion has been about Swiss law, although the defendant has raised the question of UAE law, there is actually nothing that the defendant has said about it at all, apart from the fact that it is applicable.

65. Mr Sprange KC also referred to the Granville case. This case came before Mr Justice Foxton for the first time as a matter of case management, and he decided in that case that the claimant -- I think was the claimant -- should go first. However, this is not a matter that comes before me for the first time. It has already been dealt with by Mr Justice Jacobs.

66. That really is the beginning and end of it. For all of those reasons, I am quite satisfied that the claimant's position on all of this is correct. I can quite see now, because of the position the parties have reached, why it would make sense to make a somewhat different order, but still placing the burden on the defendant, and I then have to decide as to which of the alternatives proffered by the claimants I should adopt.

67. I would be entirely within my rights, as a matter of case management, to say that as the defendants had completely ignored the decision of Mr Justice Jacobs and now sought to go behind it for reasons which I am afraid to say I regard as misconceived, they have lost their opportunity to make anything of Swiss or UAE law. But Mr Joseph KC has proffered an alternative, and although he says that has been and gone because it was offered to the defendants before the hearing and they rejected it, I am going to go down that route.

68. We can discuss the detailed drafting in a moment, but basically it would be for the defendants, within seven days, to provide particulars of the specific principles of Swiss and UAE law that they will rely upon to seek to disapply. But in fact, it is simply the principles they will rely upon for the purposes of the defence to the claim and that there is a materially different outcome. And then there will be the particulars.

69. If they do not do that, in other words, if in fact they give up on the idea that Swiss and UAE law would come to a different conclusion, which I do not think is likely, if they do not do that, then effectively those issues disappear.

70. If they do do that, then the claimant will come back and provide particulars in answer, and then we will have to make provision for expert evidence.

71. So that's the very long way of saying that in a contest to decide who should give particulars first, it's going to be the defendant and not the claimant. Rulings on Other Matters

72. The situation here is that the third defendant has refinanced her indebtedness to Cohort loan, which is secured by the first charge over the Addison Crescent property. Part of the agreement which led to the discharge of the freezing order in July 2024 was the provision of alternative security. Part of that alternative security was to execute a second charge over the property at Addison Crescent, the first charge being held by Cohort Capital.

73. The result of the additional lending by Cohort Capital means that the cushion, if I can put it in that way, between the maximum that Cohort Capital could enforce for under the first charge and the maximum amount that the second charge can be held for, which is 7.46 million, has been reduced.

74. It is clear from what I have now been told that to increase the indebtedness under the first charge was a breach of clause 5.2 of the mortgage agreement on the basis that the charge or should not do anything to diminish the security in favour of the mortgagee (that is to say here the claimant) under its second charge. I agree that that is an obvious provision to make; otherwise, the mortgagor would be free to ramp up the indebtedness on the first charge which would decrease the utility of the second charge.

75. It is not as if there is any application being made now that the third defendant is in contempt of court for breach of undertaking or anything of that kind, but it is quite clear that the arrangements contemplated between the parties were that the value or the utility of the second charge should not be reduced. That is precisely what has happened.

76. In those circumstances, it seems to me that the order sought by the claimant in paragraph 6 of the draft order, that the third defendant shall not borrow any further monies until final judgment or further order is entirely appropriate.

77. So far as it may be said, and it is not clear that it really is said, that that is something which is unduly prejudicial to the third defendant, first of all, looking at the agreements made, it was not wholly in the third defendant's gift simply to increase the expenditure under the loan. Secondly, I have no evidence at all of any detail as to why the refinancing was required. I have no information as to the sort of expenditure which it is said has given rise to the need to refinance this, nor what other funds from family or otherwise might have been available to defray those expenses.

78. The final point, of course, is that this new order is of limited effect in a time sense, because of course, the trial is going to take place in June and, let us assume, a judgment by the autumn. So one is talking probably about a period of six months. I do not consider that there would be any real difficulty or hardship in complying with it and if there was going to be, there should have been evidence about it. So I will make that order.

79. On the assessment of costs, I am going to make a reduction for the following reasons: the hourly rates charged are significantly in excess with the latest published rate from January 2026. It is not actually these days a good reason to disapply that by saying it is a heavy commercial case. It has its complexities, but the ultimate points here were relatively straightforward. I do accept that a lot of digging around had to be done, but there has got to be a significant reduction, so far as hourly rates are concerned.

80. There has also got to be something of a reduction, so far as counsel are concerned. Not that I am not always pleased to see counsel before me, but in my judgment, there still has to be a sense of proportion. Even bearing in mind the way that this matter has come about, it is really not necessary to have three counsel advising and all appearing.

81. I am going to make a just under 25% reduction. The sum which will be recovered is £75,000. That would be payable within 14 days of today. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]