Bank Of Credit & Commerce International SA v Hussain

An appellate court may adjourn a substantive appeal where an imminent decision of a higher court may affect the issues, provided the practical balance does not disclose real prejudice to the respondent. The lateness of the application is relevant but is not decisive. The court may decline to determine separable points where dividing the appeal would be unsatisfactory and the constitution of the court on restoration is uncertain.

The appeal was brought from a decision of Mr Justice Hart in the Chancery Division, which had been founded largely on this court’s decision in Etridge. The appellant sought an adjournment pending the House of Lords’ forthcoming decision in the appeal in Etridge, arguing that the decision might affect the legal principles relevant to the appeal. The respondent opposed the application because of delay, accruing interest, costs and possible prejudice to its security.

1. Adjournment granted. The court unanimously adjourned the appeal pending the House of Lords’ decision in Etridge.
2. The application was made deplorably late, but lateness was not the sole or determining consideration. The central question was whether the respondent would suffer real prejudice if the appeal were adjourned.
3. The court considered that the forthcoming House of Lords decision could affect the principles governing the appeal. The practical considerations favoured waiting. The costs thrown away could be added to the security, and the evidence concerning the value of the property suggested that the respondent was unlikely to suffer real prejudice.
4. The court declined to hear the cross-appeal on undue influence or to divide the substantive appeal into separate parts. It would be more satisfactory to determine the appeal after the higher court’s pronouncements, and it was uncertain whether the same constitution would hear the restored appeal.
5. The inquiry hearing date was vacated pending the result of the Etridge appeal. The appellant was ordered to pay the costs of and occasioned by the adjournment and the current-account application, and was denied the costs of preparing her bundles.

• Court of Appeal (Civil Division): The appeal from the Chancery Division decision of Mr Justice Hart was adjourned pending the House of Lords’ decision in Etridge.
• Chancery Division: Mr Justice Hart had given judgment for the Bank for a sum exceeding £250,000, applying principles derived largely from Etridge.