Law Debenture Trust Corporation Plc v Elektrim Finance BV & Ors

On an application to adjourn an appeal, the court must balance the potential injustice to the applicant against the prejudice that delay may cause to other parties. Relevant considerations include the applicant’s responsibility for any lack of representation, any forensic advantage gained by delay, and the urgency created by unresolved related proceedings. Where an appellant fails to appear to pursue an appeal, the court may dismiss it without investigating the merits. That is the usual order in such circumstances.

The appeal arose from an order made by Hart J on 16 September 2005. He had granted summary judgment concerning events of default under a trust deed securing bonds and directed payment of the sums that had become due. The appeal was expedited because related bankruptcy proceedings were pending in Poland and delay could affect the ability to challenge earlier transactions. The court considered a further application by Elektrim SA to adjourn the appeal after its solicitors had come off the record. No representative appeared for the appellants at the hearing. The central issues were whether the appeal should be adjourned and, if not pursued, whether it should be dismissed without consideration of its merits.

Disposition. Chadwick LJ refused the further application to adjourn. Smith LJ and Wilson LJ agreed. The appeal was then dismissed without an investigation into the merits.

1. On an adjournment application, the court must balance the potential injustice to the party seeking an adjournment against the potential injustice to the opposing parties if the appeal remains unresolved. The court considered the urgency arising from the pending Polish bankruptcy appeal, the risk to the Trustee and bond holders from further delay, and the forensic advantage that adjournment would give Elektrim.
2. Elektrim had been given repeated opportunities to secure solicitors, counsel or other representation. Its failure to do so was a matter of choice, and any resulting risk of injustice was attributable to that choice. The balance of injustice therefore required refusal of the adjournment.
3. The court was not persuaded that an interim order made by a Warsaw district court in October 2003 was relevant. Its status and effect in Poland were unknown, and the issues that would have arisen on the English appeal concerned construction of the trust deed, to which English law applied.
4. When an appellant does not appear to pursue an appeal, the respondents are entitled to dismissal without investigation of the merits. Dismissal is the usual order in that circumstance.

• Court of Appeal (Civil Division): The further application to adjourn was refused, and the appeal was dismissed because it was not pursued at the hearing.
• High Court, Chancery Division: Hart J granted summary judgment on 16 September 2005, held that events of default had occurred under the trust deed, directed payment of the sums due, and gave permission to appeal. Citation not stated in the judgment.