As a “last resort” trial proceeds without the participation of the parties due to UAE anti-suit injunction

Emily Sheard

In Dana Gas PJSC v Dana Gas Sukuk Ltd [2017] EWHC 2340 (Comm), the High Court took the unusual approach of allowing a hearing to proceed without the active participation of the Claimant and Defendant due to the existence of an anti-suit injunction issued by the UAE Court.

The parties had jointly asked the English Court to list an expedited trial at a hearing in July 2017. Court had set aside 2 weeks to hear the matter in September / October 2017. However, just prior to the start of the English hearing, certain shareholders in the Claimant obtained an anti-suit injunction from the UAE Court preventing the Claimant and Defendant from proceeding with the expedited trial in England.

In light of the UAE anti-suit injunction, the Claimant and Defendant confirmed to the English Court they were unable to take an active part in the hearing whilst the UAE injunction remained in place.

Faced with this unusual scenario, the English Court ordered that the hearing should proceed with only the written submissions of the parties and a third party intervener’s oral submissions (in support of the Defendant’s case). The third party intervener’s interests were aligned with the Defendant but they were not the subject of the anti-suit injunction.

Whilst Leggatt J recognised that proceeding with the trial was a “last resort”, he emphasised the importance of striking “the fairest possible balance” between all those involved. To do so, he took account of the following factors:

  • The case involved the determination of points of law and contractual interpretation.
  • The commercial interests of the Defendant and the third party intervener; not only did they have substantial financial interests in the outcome of the trial, an English injunction had been granted against them (prohibiting the exercise of rights under certain agreements) on the understanding that there would be a speedy trial.
  • The Claimant and Defendant had already made written submissions on the issues to be decided.
  • If the anti-suit injunction was lifted, there might be an opportunity for the Claimant (and the Defendant) to make oral submissions at a later date before judgment.
  • The interests of other litigants and the fact that adjourning the trial (which had been set for 2 weeks in an otherwise busy court diary) would cause “serious disruption and interference with the fair and efficient administration of justice”.

The hearing would proceed and then be adjourned to 12 October 2017 to see if the UAE anti-suit injunction had been discharged by that date (at which point the Claimant and Defendant may be able to make oral submissions).

Comment

Anti-suit injunctions can be an effective weapon in preventing parties from taking part in legal proceedings in other jurisdictions. However, this (admittedly unusual) case shows that an anti-suit injunction will not always be effective in stopping those legal proceedings from proceeding to trial. The English Court decided that against the particular facts of this case and in light of the UAE anti-suit injunction, the Court needed to find a solution that enabled the trial to proceed immediately through a process that was fair in all of the circumstances. The fact that (i) the case involved the determination of points of law and contractual interpretation and (ii) extensive written submissions from the Claimant and Defendant had already been filed for the trial is likely to have been a significant influencing factor in deciding that the hearing could proceed as planned without their immediate further active participation.

Dana Gas PJSC v Dana Gas Sukuk Ltd [2017] EWHC 2340 (Comm)

Post By Emily Sheard (1 Posts)

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