Three Rivers District Council & Ors v Bank of Credit & Commerce International (Sa)

An appellate court should not determine a reserved discretionary issue where the material needed to evaluate it is unavailable. Where the first-instance judge has decided a jurisdictional question but adjourned the exercise of discretion pending further evidence or developments, an appeal on jurisdiction does not dispose of the discretionary issue. If the jurisdictional appeal is dismissed, that issue should return to the first-instance judge for determination.

The appeal arose from proceedings in the High Court, Queen’s Bench Division, Commercial Court. The judge had concluded that he possessed jurisdiction to make the discovery order sought and granted permission to appeal on that legal issue. He had adjourned and reserved the separate question whether, in the exercise of discretion, the application should be dismissed because of its effect on the litigation timetable. The Court of Appeal had to determine the jurisdiction issue and the proper course for the reserved discretionary issue.

Lord Phillips MR delivered the ruling of the court.

1. The judge below had decided that he had jurisdiction to make the proposed discovery order and had granted permission to appeal on that issue.
2. The judge had not finally determined the discretionary question. He had adjourned it and reserved it for consideration in light of further developments, including evidence from the Treasury Solicitor about the effect of a discovery order on the timetable.
3. The Court of Appeal was not in a position to evaluate that discretionary question because it did not have the relevant material. The issue therefore remained for the judge who had reserved it.
4. The appeal on the issue of law was dismissed. The matter was to return to the judge below, who was to decide what followed in relation to the exercise of discretion.

1. Court of Appeal (Civil Division): considered the appeal from the High Court and dismissed the appeal on the legal issue, leaving the reserved discretionary question to the judge below.
2. High Court, Queen’s Bench Division, Commercial Court: held that the court had jurisdiction to make the discovery order, granted permission to appeal on that issue, and reserved the discretionary question.