ABCI v Banque Franco Tunisienne & Ors

Permission to appeal may properly be granted where separate actions involve substantially common facts and issues, so that the appellate court can consider them together. The ordinary rule is that execution is not stayed pending an appeal. An unusual stay may nevertheless be justified where the judgment debtor identifies secure funds, supported by an undertaking, sufficient to meet the costs orders if required. In assessing the arguability and importance of a challenge to costs, the distinction between standard and indemnity costs is material: proportionality applies to standard costs but has no role in assessing indemnity costs.

ABCI sought renewed permission to appeal in three related actions concerning complex disputes with Banque Franco Tunisienne and other respondents. The applications challenged jurisdictional findings, costs orders made in favour of multiple defendants, the award of costs on the indemnity basis, and the interest rate applied to costs.

Permission had already been granted in one action. The court considered whether the common factual background and overlapping issues justified permission in the other actions, and whether execution of interim costs-payment orders totalling at least £600,000 should be stayed pending appeal.

1. Permission to appeal. Permission was granted in relation to the remaining issues in the three actions. In the conspiracy action, the judge’s jurisdictional decision had proceeded on the basis that ABCI did not exist when the contract was made. ABCI’s case that the contract was ratified after incorporation had not been addressed. The overlap with the already-permitted settlement-agreement appeal made it appropriate for the issues to be considered together.
2. Permission was also granted on challenges to costs orders in favour of multiple respondents, the use of the indemnity basis, and the interest rate. The reference to Home Office v Lownds [2002] EWCA Civ 365 identified a material issue of principle concerning the different treatment of proportionality under the standard and indemnity bases.
3. Stay of execution. The normal rule is that execution is not stayed pending appeal. ABCI had not shown that payment would prevent it from pursuing the appeals, and undertakings addressed concerns about recovery abroad. Nevertheless, the court granted an unusual stay because Banque Franco Tunisienne held approximately £1.5 million for ABCI, substantially exceeding the interim costs orders, and ABCI undertook that the deposit would remain available to satisfy those orders if the settlement agreement remained effective.
4. Lord Justice Dyson agreed. The applications were allowed.

• Court of Appeal (Civil Division): renewed applications allowed. Permission to appeal was granted on specified jurisdictional and costs issues, and execution of the interim costs-payment orders was stayed pending the appeals.
• His Honour Judge Chambers QC: made the challenged jurisdictional and interim costs-payment orders. No citation for that decision was stated in the judgment.