Sahara Energy Resource Led v Rahamaniyya Oil And Gas Ltd & Anor

Applications to set aside orders made in a party’s absence require the applicant to satisfy the applicable procedural requirements and, where time has expired, to establish circumstances warranting an extension. The court may disregard factual assertions that have no real substance or are clearly contradicted by contemporaneous documents. Effective service may be established by the parties’ conduct and subsequent communications, particularly where an earlier order authorised the same method. Under CPR 39.3, each requirement must be satisfied, including prompt action, a good reason for non-attendance and a reasonable prospect of success. Knowledge of impending proceedings, participation in settlement discussions and agreement that proceedings may be relisted may defeat an application based on alleged lack of notice.

Sahara sought to uphold three orders concerning committal proceedings against Rahamaniyya Oil and Gas Ltd, Mr Bashir and Mr Aderemi. Moulder J had authorised service of the committal documents by email on 7 November 2019. Butcher J subsequently found the respondents in contempt on 17 January 2020 and imposed sanctions on 7 February 2020.

The respondents applied on 21 April 2020 to set aside Moulder J’s order under CPR 23.10 and the later orders under CPR 39.3. They alleged that they had not received the relevant orders and hearing documents until about 12 February 2020. The issues were whether time should be extended, whether email service had been effective, and whether the requirements of CPR 39.3 (5) were satisfied.

1. The applications were dismissed. The respondents had to establish an entitlement to set aside the orders. The application against Moulder J’s order was made outside the seven-day period and required exceptional circumstances justifying an extension.
2. The court was entitled to disregard factual assertions lacking real substance, particularly where contradicted by contemporaneous documents. The evidence showed that email service had been effective. The respondents and their Nigerian lawyer had received and acted upon communications concerning the committal proceedings.
3. The earlier order of Knowles J had authorised service by email, and no objection had been raised to that method. Following Al-Baker v Al-Baker [2015] EWHC 3229 (Fam), there could be no realistic complaint where a later committal order provided for the same manner of service, especially when the original order had not been challenged.
4. The settlement agreement was decisive against the application concerning Moulder J’s order. It expressly referred to the committal proceedings and permitted Sahara to seek an urgent relisting if the agreement was breached. Rahamaniyya and Mr Bashir therefore could not rely on alleged inadequate service of the original committal papers.
5. Each requirement of CPR 39.3 (5) had to be fulfilled. The respondents had no good reason for failing to attend, had not acted promptly after their alleged discovery of the orders, and had not established a reasonable prospect of success. Their illness, funding difficulties and the Covid-19 restrictions did not adequately explain the delay or non-attendance.
6. The evidence showed that the respondents had a reasonable opportunity to present their case but declined to participate. Their application was dismissed.