Trustor A.B. v Barclays Bank Plc & Ors

The Court of Appeal may use its case management powers under CPR 3.1(2)(f) to stay all or part of proceedings where that is the appropriate means of managing related litigation efficiently. The court may defer determination of an appeal where the parties have identified a sensible course, including foreign proceedings and alternative dispute resolution, and immediate determination would be unnecessary or counterproductive. A stay need not be subject to an artificial time limit where its duration depends on the progress of related proceedings. Issues that have not been fully argued, including jurisdictional questions concerning contribution proceedings, should be left for determination if and when they arise.

Trustor A.B. brought liability proceedings in England involving Barclays Bank Plc and Van Lanschot Bankers (Luxembourg) SA. Related liability proceedings were pending in Luxembourg, together with contribution proceedings involving the parties. The appeal arose from a Chancery Division decision by Rimer J and concerned, among other matters, the appropriate forum and management of the related proceedings.

At the hearing, the parties expressed willingness to participate in alternative dispute resolution. Barclays sought a stay of the English proceedings pending determination of the Luxembourg liability proceedings. The central question was how the English and Luxembourg proceedings should proceed, and whether the appeal should be determined immediately.

1. Disposition. The court exercised its case management powers and declined to determine the substantive issues on the appeal at that stage. The appeal was stood over with liberty to restore to the Chancery Division.
2. Stay of proceedings. Under CPR 3.1(2)(f), the court had power to stay the whole or part of the English proceedings. On balance, it ordered a stay pending determination of all liability proceedings in Luxembourg. The court did not impose an artificial time limit, since the appropriate duration depended on developments in Luxembourg.
3. Effect of related decisions. Barclays and Van Lanschot were to be bound by the decisions of the Luxembourg and English courts respectively concerning the other bank’s liability to Trustor, including liability and quantum. The undertakings were to be carefully drafted.
4. ADR and expedition. The order was to record the parties’ agreement to participate in ADR and their obligation to take reasonable steps to secure the reasonably expeditious determination of the Luxembourg issues. ITCB’s participation remained without prejudice to its contention that the English courts lacked jurisdiction over claims against it.
5. Contribution proceedings. The court expressed the provisional view that the English contribution proceedings had been commenced first and therefore fell within article 21 of the Brussels Convention. However, because jurisdictional questions concerning contribution proceedings involving ITCB had not been fully debated, the court left the forum question for decision if and when it became necessary.
6. Costs. Trustor was awarded its costs of being brought into the appeal by Barclays. Other costs were reserved.

• Court of Appeal (Civil Division): The court stood over the appeal with liberty to restore it to the Chancery Division, stayed the English proceedings pending determination of the Luxembourg liability proceedings, and made consequential case management and costs directions.
• Chancery Division: Rimer J had held provisionally that the English contribution proceedings were first seised and fell within article 21 of the Brussels Convention.