ICTSI Middle East DMCC v The Government of the Republic of Sudan

An adjournment may be granted where a party seeks a late opportunity to engage with proceedings, but the court may impose conditions to protect the opposing party from resulting prejudice. Each condition must be tailored to the purpose for which it is imposed. Relevant considerations include the delay, the apparent strength of the defence, liabilities accruing during the adjournment and the need to secure effective future engagement with the proceedings.

The claimant had issued a summary judgment application concerning liabilities said to arise under a Refund Bond and an indemnity for funding costs. The defendant, the Government of Sudan, appeared at the hearing through newly instructed solicitors and sought an adjournment while reserving its position on jurisdiction, service and the merits.

The court considered whether justice required an adjournment and, if so, what conditions should be imposed to ensure that the claimant was not materially prejudiced by the delay.

1. Adjournment granted on terms. Although the application was made very late and the defendant had not previously engaged with the proceedings, justice required an adjournment to permit it to be heard. The matter was adjourned to the first available two-day date in May 2021.
2. The adjournment was conditional on the defendant paying the costs thrown away on an indemnity basis. Those costs were to be summarily assessed if not agreed, with payment of a specified sum within 14 days.
3. The defendant was also required to pay €7 million into court. This represented two months of the continuing €3.5 million monthly liability and was directed at protecting the claimant against prejudice caused by the delay. The court considered that the apparent strength of the claim under the Refund Bond, including the governing-law and exclusive-jurisdiction provisions and acknowledgements of liability, justified security, while recognising that the separate funding-cost liability might require fuller argument.
4. Any application to set aside jurisdiction or the order concerning service was to be made within one month. The court emphasised that conditions must be tailored to their purpose, namely protecting the claimant from prejudice caused by the adjournment and securing proper engagement with the proceedings, applying the approach derived from Abbot Investments (North Africa) Limited v Nestoil Limited [2017] EWHC 119 (Comm).

not stated in the judgment.