Dana Gas PJSC v Dana Gas Sukuk Ltd & Ors

When deciding whether to postpone judgment because a party cannot participate owing to a foreign anti-suit injunction, the court must balance the affected party’s opportunity to make oral submissions against the prejudice caused by delay, the importance of resolving the dispute promptly, court availability and the parties’ responsibility for the predicament.

A further adjournment may be granted as a final indulgence where fairness requires it, but the court may impose a fixed long-stop date and proceed to judgment if the party remains unable to participate.

The applicant sought a further postponement of judgment in proceedings concerning agreements and certificates due for redemption at the end of October 2017. An injunction obtained in the United Arab Emirates prevented the applicant from participating in the English trial. The court had previously arranged for the defendants’ case to be presented by an added defendant and had adjourned the matter to allow the applicant a possible opportunity to participate.

The applicant argued that judgment should be delayed until after the likely further hearing of its UAE appeal. The issue was whether the balance of fairness and prejudice justified another postponement.

1. Application granted only to a limited extent. The court granted one final adjournment, fixed a further hearing for 13 November 2017, and directed the applicant to file evidence explaining in detail its efforts to overturn or suspend the UAE anti-suit injunction. If the applicant could address the court on that date, it would be permitted to do so; otherwise judgment would be handed down.
2. The court was required to balance the applicant’s interest in making oral submissions against the defendants’ interests, the need for an early decision, court availability and the interests of other litigants. The relevant agreements and certificates were due for redemption at the end of October, making prompt resolution important.
3. The applicant’s position was materially affected by its own conduct. The court had previously found that it had breached court orders requiring steps to remove an earlier injunction and had not opposed its shareholders’ application for an anti-suit injunction. The lack of evidence concerning the applicant’s efforts in the UAE further weakened the application.
4. There had been no relevant change of circumstances since the earlier judgment. The unresolved UAE appeal was an eventuality that had been foreseeable when the previous balance was struck. Nevertheless, the court exercised its discretion once more because the earlier judgment had contemplated 31 October, or shortly thereafter, as the ultimate long-stop date for decision.
5. The court made clear that any further delay would not generate another equivalent application. The adjournment was therefore a final opportunity to participate, not an open-ended postponement.

The judgment itself describes an earlier judgment given by the same court on 22 September 2017 concerning the arrangements for proceeding with the trial, but gives no citation for it. This judgment determined the subsequent application for a further postponement.