Dana Gas PJSC v Dana Gas Sukuk Ltd

Fairness in civil proceedings depends on the circumstances of the particular case and must be assessed by considering the process as a whole. A trial may proceed in the absence of a party where the issues are confined to law and contractual interpretation, written submissions have been received, and the party may have a later opportunity for reconsideration under CPR 39.3. The court must balance fairness to the absent party with fairness to the opposing parties, other affected persons and other litigants whose cases would be disrupted by an adjournment. A trial in the absence of a party remains a last resort, but the party’s responsibility for the situation and the need for a timely decision are relevant.

Dana Gas PJSC sought declarations concerning the validity and enforceability of a mudarabah agreement governed by UAE law and a purchase undertaking governed by English law. The English court had ordered a speedy trial and had required Dana Gas to discharge related UAE proceedings and an injunction. Dana Gas failed to comply promptly, and the Sharjah court later made an anti-suit injunction prohibiting the parties from continuing in England.

Dana Gas applied for an adjournment until after an anticipated appeal in the UAE. BlackRock, which had been granted an interim anti-suit injunction and sought to intervene, argued that the trial should proceed. The central issue was how fairness should be achieved while preserving the possibility of a decision by or shortly after 31 October 2017.

1. Adjournment and continuation of trial. The application for a wholesale adjournment was refused. The trial would begin with BlackRock presenting oral argument on behalf of the defendants’ position, after which it would be adjourned to 12 October 2017, subject to conditions.
2. Fairness is fact-sensitive and must be assessed by looking at the whole process. It was not impossible to hold a fair trial in Dana Gas’s absence because the issues had been revised into questions of law and contractual interpretation, Dana Gas had already made written submissions, and reconsideration might be available if the conditions in CPR 39.3 were met.
3. The court had to balance fairness to Dana Gas against fairness to the defendants, BlackRock and other litigants. Delay would prejudice the defendants, who remained restrained from enforcing their rights, and would disrupt the efficient administration of the Financial List by displacing other fixed trials.
4. Dana Gas’s breaches of the English court’s orders and its conduct in the Sharjah proceedings were relevant to the overall fairness assessment. Nevertheless, proceeding without oral argument from Dana Gas was described as a last resort.
5. The further hearing would occur only if Dana Gas used its best endeavours to prevent the UAE proceedings listed for 3 October from proceeding. The court reserved power to vacate the hearing and give judgment if intervening developments warranted that course.