University Of Sussex v Commissioners of Customs & Excise

An appellate court may adjourn a case where a pending decision of the European Court may materially affect the issues and the parties disagree about its likely impact. The court should balance the potential disadvantage of delay against the risk of wasted costs and other prejudice if the case proceeds. Where the risk of costs being thrown away is greater, an adjournment may be ordered, with arrangements for priority relisting once the pending decision becomes available.

The University of Sussex appealed from proceedings in the Chancery Division before Mr Justice Neuberger. Before the appeal proceeded, the parties made an application to adjourn pending the European Court’s decision in Marks & Spencer. They disagreed about the effect that decision might have on the appeal. The Court of Appeal therefore considered whether the case should remain in the list or be stood out until the European decision was available.

1. Application allowed. The Court of Appeal ordered that the appeal be stood out pending the decision of the European Court in Marks & Spencer.
2. The court recognised that the parties disagreed about the likely impact of the pending decision. It nevertheless considered that the downside of leaving the appeal in the list was greater. Proceeding created a greater risk of costs being thrown away than would arise from standing the case out.
3. The court directed Listing to give the matter priority for relisting once notification was received that the European Court’s decision was available. The court expressed the expectation that relisting would occur within a few months rather than a year or more.
4. Costs were ordered to be in the appeal.

• Court of Appeal (Civil Division): Application to adjourn the appeal allowed pending the decision of the European Court in Marks & Spencer.
• High Court, Chancery Division: Appeal stated to be from proceedings before Mr Justice Neuberger; the judgment gives no citation for that decision.