Dana Gas PJSC v Dana Gas Sukuk Ltd & Ors

The court in this case has been faced with a difficult and unusual situation. The full background circumstances are described in a judgment that I gave on 22 September 2017.

In brief, an order was made for a speedy trial, which was meant to take place during the last two weeks of September. However, an injunction has been granted in the United Arab Emirates at the instigation of shareholders of Dana Gas, which prohibits Dana Gas and other parties from taking part in the trial.

In those circumstances, I had to decide whether the trial should go ahead without the participation of Dana Gas. In that context, I granted an application by BlackRock to be added as a defendant thereby enabling the defendants’ case to be presented, because BlackRock is not subject to the injunction granted by the court in the UAE.

In coming to the decision that I gave on 22 September 2017, I had to balance a number of competing considerations of fairness. Amongst other things, I took into account the importance of an early decision in this case, which was the whole premise of making an order for a speedy trial – a premise which Dana Gas had shared, in that at the hearing when directions were given for a speedy trial, it had urged the importance of a decision by the end of October. That is the date when the certificates in issue in this action fall to be redeemed if the relevant agreements are enforceable.

I also took into account findings that I made in the judgment given on 22 September, that Dana Gas itself bears a significant degree of responsibility for the situation which has arisen in which it is unable to participate in the trial. That is because, although I am not in a position to decide the truth of the allegation made by BlackRock that Dana Gas colluded with its shareholders, I found that on incontrovertible facts Dana Gas was in breach of more than one court order which had required it to take steps to remove an injunction granted by the Sharjah court that was already restricting participation in these proceedings; and also that it had not opposed its shareholders’ application for an anti-suit injunction.

A third consideration that I had to take into account was the availability of court time and the fact that it is not only the interests of the parties before the court but the availability of the judge and the interests of other litigants which need to be considered.

A fourth and very important factor taken into account was the obvious desirability of hearing oral argument on behalf of Dana Gas before the court reaches a decision, if that is at all possible.

In the order that I made, I sought to strike a balance between those different considerations in what I considered to be the fairest way possible. The order provided that the trial would proceed immediately for a day of argument in which the defendants’ case would be presented by BlackRock. That then took place. The order also provided that the trial would be listed for a further hearing on 12 October 2017 – that is to say, yesterday. That was subject to two conditions: (1) the court receiving an undertaking that Dana Gas would use its best endeavours to seek to vacate a hearing in the Sharjah proceedings which had been listed for 3 October; and (2) the court reserving the right to vacate any hearing listed for 12 October and proceed directly to give judgment if there was any development which in the court's opinion warranted doing so.

The date of 12 October was set with regard to court availability and also to the fact that an appeal against the anti-suit injunction granted by the Sharjah court had been listed for hearing in the UAE on 8 October. The date of 12 October, therefore, gave the possibility that, if the appeal in the UAE was decided on 8 October and if Dana Gas was successful on the appeal, Dana Gas would be able to participate in the trial. It also contemplated the possibility that this might not prove to be the case, in which case this court would proceed to give judgment without having received oral submissions on behalf of Dana Gas.

In the event, what happened on 8 October was that the Sharjah court adjourned the hearing of the appeal apparently because not all the parties had been served with process. Such service, I understand, is the responsibility of the UAE court and not of the parties themselves. There was an application pressed by Deutsche Bank, which had also brought an appeal, for the appeal court to suspend the anti-suit injunction so as to enable the parties to the UAE proceedings to participate in these proceedings pending the further hearing of the appeal. That application was apparently rejected by the Sharjah court.

Against that background Dana Gas has applied to this court today asking the court to postpone handing down judgment until after what is said to be the likely date of the next hearing of its appeal in the UAE. I am told that no date has been given by the court in the UAE for the hearing of that appeal but that it may be listed during the week beginning 29 October 2017.

Mr. Gillis QC, who did not appear on the last occasion but represents Dana Gas today, has submitted that the court needs to strike a balance today. On the one hand, it should take into account what he calls the fair trial rights of Dana Gas, by which he means its right to make oral representations to the court before a decision is reached. On the other hand, the court should take into account any prejudice to the defendants, including BlackRock, if judgment is delayed. Mr. Gillis submits that any such prejudice would be purely financial and would be minimal as the defendants have security for their claims. He also points to the fact that in my judgment given on 22 September 2017, at paragraph 16, I said:

"What the court must try to do is, if at all possible, find a solution which enables the trial to proceed immediately if that can be done but, in any event, in such a way as will enable a decision to be arrived at before or at latest very shortly after 31 October through a process that is fair overall in the circumstances of this case."

Mr. Gillis submits that it would be consistent with that approach to allow Dana Gas a further opportunity to make oral submissions by delaying judgment until 13 November, or thereabouts, thereby holding out the possibility that its appeal will be decided in the previous week and decided in a way which will enable Dana Gas to participate in the trial.

I should say that I am struck by the lack of evidence produced by Dana Gas to support its application today. I would have expected, although the time has been short, that in the several days now since the hearing took place on 8 October evidence would have been obtained to set out exactly what happened on that occasion and to explain the efforts which Dana Gas has made to try to achieve a situation in which it is released from the Sharjah injunction, thus allowing it to participate in the trial in this court.

In particular, the only accounts that I have been given of the hearing in the UAE on 8 October and of what seems to have been a follow up hearing on the next day suggest that the only party which sought to urge the court to suspend the injunction was Deutsche Bank. There is no evidence to suggest that Dana Gas' representatives made any oral submission to the UAE court urging the importance of being allowed to participate in the English proceedings on 12 October and asking the court to suspend the injunction to enable it to do so. It is difficult not to draw an inference in those circumstances that Dana Gas has once again simply been content to appear in court saying nothing and leaving it to other parties to make arguments.

I also consider that there has been no relevant change of circumstances since 22 September. All the points that have been made today by Mr. Gillis are points which could have been, and were, made on the last occasion. The balance that he asks the court to strike is, in effect, the same balance as the court was being asked to strike previously. The only thing that has changed is that it is now known that the appeal hearing which was listed for 8 October 2017 did not resolve the matter, when on 22 September that was not known but was nevertheless something that could have been foreseen, and was foreseen, as one possible eventuality.

Notwithstanding all of that, I am going for one final time to adjourn this case to give yet a further opportunity for Dana Gas to take part in the proceedings. I intend to do so on the following terms. First, evidence must be filed by Dana Gas within a timeframe to be discussed, explaining in detail the efforts it has made so far to persuade the court in the UAE to overturn or suspend the anti-suit injunction. Secondly, I shall set another date which will be the latest date when Dana Gas will have an opportunity to make oral submissions before a judgment is given, irrespective of what may happen in the United Arab Emirates.

It is already an indulgence to Dana Gas to adjourn this trial once again and I do not intend that there will be any replication of the application that is made today even if there should be a further delay in the resolution of the appeal in the UAE.

The only thing that has persuaded me to grant this further time today is the fact that, in the judgment given on 22 September, I contemplated the date of 31 October or a date shortly after that as the ultimate long stop date by which a decision needs to be arrived at. The date that in all the circumstances I intend to set today for the further hearing of this case is 13 November. If Dana Gas is in a position to address argument on that day, it will be permitted to do so; otherwise, the court will then proceed to hand down judgment.