Dell Emerging Markets (EMEA) Ltd & Ors v (Systems Equipment Telecommunications Services SAL & Ors

In exceptional circumstances, a court may proceed with a committal hearing in a respondent’s absence. The discretion must be exercised with great care, giving primary weight to fairness, while also considering fairness to the applicant and all the circumstances. Relevant factors include notice, preparation time, reasons for absence, likely prejudice, the prospect that an adjournment will secure attendance, the state of the evidence and the overriding objective.

For sentencing, serious breaches of anti-suit injunctions are analogous to breaches of freezing injunctions. Deliberate, repeated and continuing breaches causing substantial prejudice may justify immediate imprisonment. The sentence must reflect culpability, harm, persistence, remorse and mitigation.

The claimants applied for committal orders and other relief against a Lebanese company and its directors and former director. The application arose from breaches of interim and final anti-suit injunctions restraining proceedings brought in Lebanon.

In an earlier judgment dated 13 March 2020, the court found each respondent guilty of contempt to the criminal standard. The resumed hearing concerned whether it should proceed in the respondents’ absence, the appropriate sentences, other relief and costs. The respondents had notice but neither attended nor sought an adjournment.

1. Proceeding in absence. The court proceeded with the resumed committal hearing. The governing discretion had to be exercised with great care, particularly because the respondents were unrepresented. The respondents had received proper notice, had sufficient time to prepare, had previously put forward their factual and Lebanese-law case, and had offered no good reason for their continued absence. An adjournment was unlikely to secure attendance and would prejudice the claimants by prolonging the Lebanese proceedings and increasing the risk of further breaches. The overriding objective therefore favoured proceeding in their absence.
2. Sentencing principles. Breaches of anti-suit injunctions were analogous, for sentencing purposes, to breaches of freezing injunctions because both constituted serious attacks on the administration of justice. The court applied guidance concerning the inherent seriousness of freezing-order breaches. A prison sentence was likely to be required for serious breaches, and sentences near the two-year maximum were not confined to the worst conceivable contempts.
3. Individual sentences. The second and third respondents had deliberately caused and permitted repeated and continuing breaches, were the controlling minds of the company, and had caused serious prejudice. Each was sentenced to 18 months’ immediate imprisonment. The fourth and fifth respondents were also wilfully complicit or actively encouraging in the breaches, had failed to prevent compliance, and had shown no remorse. Each was sentenced to nine months’ immediate imprisonment. The company was guilty of contempt but could not be imprisoned.
4. Each individual respondent was to serve up to half the sentence in custody and then be subject to release pursuant to Criminal Justice Act 2003, s.258. The court gave non-binding indications that prompt cessation of the Lebanese proceedings could support remission of half the sentence. The claimants’ costs were summarily assessed at £225,000.