Base Metal Trading Ltd v Shamurin

An appellate court should interfere with a discretionary case-management decision only where the judge has exceeded the generous ambit of reasonable disagreement. A preliminary issue may properly be refused where determining it separately would divide credibility issues that overlap with the merits and risk injustice, even if a separate hearing might save time and expense. The CPR allow flexible case management, including sequential trials and staged evidence or disclosure, after the pleadings clarify the issues.

The defendant sought permission to appeal against Mr Justice Aikens’s refusal to order a preliminary trial of issues arising from a Part 24 application. The defendant contended that the claims were governed by Russian law and had either become time-barred or disclosed no remedy under that law. Mr Justice Moore-Bick subsequently refused the Part 24 application because the Russian-law issues might depend on oral evidence and the credibility of the principal witnesses. The central issue was whether the Russian-law questions should be tried separately despite their factual overlap with the merits.

1. Application dismissed. The Court of Appeal held that there was no realistic basis for interfering with the case-management decision. Such a decision involved an exercise of discretion, and appellate intervention was permissible only if the judge had exceeded the generous ambit of reasonable disagreement.
2. The judge had not decided that every issue had to be tried together. He had accepted that credibility issues should not be divided where the proposed preliminary issue might require assessment of the defendant’s allegations against the claimant’s principal witness. The Russian-law issues overlapped with factual questions, including where the alleged torts were committed, the communications between the parties and whether the trading had been authorised. It was therefore open to the judge to conclude that an isolated preliminary trial would risk unfairness.
3. The court recognised the force of the argument that a short preliminary trial might save time and expense. However, the appropriate course was to complete the pleadings and reconsider, at a case-management conference, whether particular issues could sensibly be determined before others. Some credibility-dependent issues might be tried separately, while other negligence issues might depend on different considerations.
4. Lady Justice Hale agreed and emphasised that the CPR confer wide case-management powers. These include ordering sequential trials of factual issues before the same judge, retaining control of the proceedings and staging evidence or disclosure to meet the timetable.
5. The renewed application for permission to appeal was dismissed, with costs subject to detailed assessment.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed. [2002] EWCA Civ 40.
2. High Court: Mr Justice Aikens refused the application to try the Russian-law issues as preliminary issues. Mr Justice Moore-Bick later refused the Part 24 application, substantially because the issues might depend on oral evidence and credibility.