Walbrook Trustee (Jersey) Ltd & Ors v Fattal & Ors

An appellate court should not interfere with a case-management decision where the judge applied the correct principles, considered relevant matters and excluded irrelevant matters, unless the decision was plainly wrong and outside the generous ambit of the discretion.

Related proceedings need not be tried together merely because their subject matter overlaps. A stay or refusal of a counterclaim may be justified where a combined process would complicate or delay the principal claim and the related issues can be managed later by the judge dealing with it.

Permission to appeal may exceptionally be reconsidered where material before the permission judge was misleading or incomplete. Applicants should notify the Civil Appeals Office of material later changes affecting permission.

The dispute concerned the management, proposed sale and beneficial interests in Berkeley Court. Walbrook, acting as trustee and manager, brought Part 8 proceedings seeking directions for a sale. The Fattal interests brought a separate Part 7 claim alleging, among other matters, pre-emption rights concerning the Sharet Trust interest and mismanagement.

Sir Francis Ferris retrospectively extended time for service of the Part 7 particulars of claim, stayed further Part 7 proceedings until determination of the sale issues, and refused permission for a Part 20 counterclaim in the Part 8 proceedings. The Fattal interests appealed the stay, the refusal of the counterclaim and the costs orders.

Before permission was granted, Henderson J had directed that a central preliminary Sharet issue be tried within the Part 8 proceedings. The central question was whether the original judge’s case-management and costs decisions should be disturbed.

1. Appeal dismissed unanimously. Lawrence Collins LJ held that the orders were discretionary case-management decisions. An appellate court should not interfere unless the judge applied wrong principles, considered irrelevant matters, omitted relevant matters, or made a decision plainly wrong and outside the generous ambit of discretion. Moses LJ agreed. Arden LJ also agreed, subject to expressing no concluded view on the Davenport Lyons issue.

2. The judge was entitled to conclude that allowing the Part 7 claims to proceed, whether separately or together with the Part 8 proceedings, would complicate or delay determination of the sale issues. The Sharet issues could be managed by the judge dealing with the Part 8 claim. Their possible relevance did not require their introduction through a separate Part 7 action or a Part 20 counterclaim.

3. The overlap between the remaining claims did not require a combined trial. Those complaints were relevant to the sale proceedings only to the limited extent that they could bear on Walbrook’s suitability to conduct a sale. Their modest monetary value made a full trial of them disproportionate in the context of the sale directions.

4. The costs orders disclosed no error of principle. The need for an extension followed the appellants’ failure to comply with the procedural rules. The judge could properly regard them as unsuccessful in resisting the stay and could award two sets of costs on the Part 8 application.

5. On the court’s own motion, it declined to set aside permission to appeal under CPR 52.9. The ground on which permission had been granted had become academic after later case-management developments, but the original application materials were not misleading when filed. As additional guidance, the court said that an appellant should notify the Civil Appeals Office in writing of material later changes affecting the grant of permission. It referred to Hertsmere Borough Council v Harty [2001] EWCA Civ 1238 and Barings Bank Plc v Coopers and Lybrand [2002] EWCA Civ 1155 on the exceptional circumstances in which permission may be set aside.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the stay of the Part 7 proceedings, refusal of permission for a Part 20 counterclaim, and the costs orders.
• High Court, Chancery Division (Sir Francis Ferris): On 22 June 2007, retrospectively extended time for service of the Part 7 particulars of claim, stayed further Part 7 proceedings pending determination of the Part 8 sale issues, and refused permission for a Part 20 counterclaim. No citation is stated in the judgment.