Direct Investments Limited v Vartika Mittal-Goenka & Ors

The order in which parties must particularise foreign law and adduce expert evidence is a matter of case management. Where a defendant first raises foreign law, the court may require the defendant to identify the foreign-law principles relied upon before requiring the claimant to respond. The presumption of similarity does not determine the substantive issue or alter the legal burden of proof; it places the burden of adducing evidence on the party seeking to displace it. A prior case-management order remains effective unless appealed, set aside or varied. The court may also restrain further borrowing where refinancing would diminish the value of security protected by the parties’ agreement.

The claimant, a BVI company, brought substantial claims concerning transfers of money to the defendants, including constructive trust, proprietary claims, knowing assistance and conspiracy. The defendants pleaded that Swiss and UAE law might govern particular issues and sought to rely on expert evidence concerning those systems.

At an earlier case-management hearing, Mr Justice Jacobs directed the defendants to provide particulars of the Swiss and UAE principles relied upon before permission for expert evidence was determined. The defendants did not comply and later sought to reverse the sequence, relying principally on Brownlie and a separate case-management decision in Granville. The central issue was which party should particularise foreign law first.

1. Foreign-law particulars and expert evidence. The dispute was quintessentially one of case management. The court had power to determine who should provide particulars first and how foreign-law evidence should be sequenced.
2. The defendants had first raised Swiss and UAE law. Their pleading did not identify the relevant foreign-law principles or explain any materially different outcome. It was therefore appropriate to require them to particularise the principles on which they relied before the claimant responded and before expert evidence was arranged.
3. The order made by Mr Justice Jacobs was clear. The defendants had neither complied with it nor appealed, set it aside or sought to vary it. Their change of approach did not justify reopening the issue. The court nevertheless granted a final opportunity: within seven days the defendants were to particularise the specific Swiss and UAE principles relied upon. If they did not, those issues would fall away. If they did, the claimant could respond and provision could then be made for expert evidence.
4. Brownlie did not prescribe a mandatory approach to case management of foreign-law evidence. It concerned a different procedural context, in which the claimant had relied on foreign law. Its discussion of the presumption of similarity confirmed that the presumption operates until displaced by evidence and places the evidential burden on the party seeking to displace it. It did not fetter the court’s case-management discretion.
5. Granville, where the claimant had been required to go first, did not govern because the present question had already been determined by Mr Justice Jacobs and arose in a materially different procedural context.
6. Security. The third defendant’s refinancing increased the indebtedness secured by the first charge and reduced the utility of the claimant’s second charge, contrary to clause 5.2 of the mortgage agreement. An order restraining further borrowing until judgment or further order was appropriate. Costs were reduced by just under 25%, with £75,000 payable within 14 days.

The judgment describes an earlier case-management order made by Mr Justice Jacobs on 10 October 2025 concerning particulars and expert evidence on Swiss and UAE law. The defendants did not appeal, set aside or vary that order. The present application was determined at first instance by the Commercial Court.