Bank Of Credit & Commerce International SA v Ali & Ors

A case-management order directing that findings in test cases bind other litigants does not automatically extend to findings made on appeal. If the order is ambiguous, the proper first step is to ask the judge who made it whether that was intended. Any objection should then be pursued by appeal, or the appellate court may address the matter in its discretion.

A further general order making appellate findings of law binding is ordinarily unnecessary because precedent and stare decisis already govern later litigation. An order binding findings of fact may be made during or after the appeal where the court has heard full argument and all relevant material, and considers the finding suitable for mutual application.

Lightman J case-managed claims by former employees of BCCI and directed that findings on common issues in selected stigma-claim test cases should bind other listed parties. The test cases were decided against the employees, and permission to appeal was later granted on limited issues.

BCCI applied to the Court of Appeal for an order declaring that the original case-management direction extended to determinations or findings made on the appeal. The application was opposed by non-test-case employees, including represented and unrepresented parties. The central issue was whether a general order should be made before the appeal to bind those parties to appellate findings of law and fact.

1. Application dismissed. Lord Justice Chadwick declined to make the requested general order, while permitting either BCCI or a non-test-case employee to invite the court hearing the appeal to make a particular finding or inference of fact mutually binding.
2. The Court of Appeal should not resolve the scope of the original order as a pure question of construction while its meaning remained uncertain. The proper course was first to ask Lightman J whether he intended the order to cover findings made on appeal. If he did, an objector should appeal against that order. If he did not, the Court of Appeal could address the issue in the exercise of its own discretion.
3. For present purposes, the judge proceeded on the assumption that the original order was confined to findings made at the test-case trials. It was inappropriate at that stage to direct that appellate findings of law should bind all parties. The ordinary doctrines of precedent and stare decisis would make Court of Appeal findings binding on the Court of Appeal and the High Court, subject to any appeal to the House of Lords. A wider effect could not be justified.
4. It was also unlikely that the appeal would require general findings of fact. The appellate court might uphold the trial judge’s approach, make further findings from the existing material, or remit the matter for further consideration. A general order would risk inflexibility without compensating benefit.
5. The preferable course was to allow the appellate court, during or after the hearing, to decide whether a particular inferred fact should bind other interested parties. That would require those parties to be present through solicitors and counsel if the court considered their assistance necessary. The costs of such attendance were made costs in the appeal, and the costs of the application were reserved.

• High Court, Chancery Division: Lightman J made a case-management order on 29 July 1998 directing that determinations of law and common facts in selected test cases should bind other listed parties. Judgment on the stigma claims was given on 25 June 1999, followed by an order dated 4 November 1999 rejecting the individual claims.
• Court of Appeal (Civil Division): Permission to appeal was granted on limited issues on 4 May 2001. On the present interlocutory application, the Court dismissed BCCI’s request for a general extension of the case-management order. The costs of the application were reserved.