Mehta v Islamic Investment Co of the Gulf (Bahamas) Ltd.

When reviewing a discretionary decision, the Court of Appeal should not interfere unless it was plainly wrong, relied on an irrelevant consideration, or failed to consider a relevant matter. Conditions attached to permission to appeal may be varied, but the court may impose strict deadlines and make compliance a precondition to the appeal proceeding. A court may also require a timely application, on notice, for any extension concerning a substantial payment into court.

The applicant repeatedly sought the return of his passport, which had been taken under an order made by David Steel J in September 2008. On 19 March 2009, the judge refused the seventh application, finding no significant change of circumstances, that the applicant was a flight risk, and that he had not complied with earlier orders.

The applicant applied to the Court of Appeal for permission to appeal that refusal. He also sought variation of conditions imposed on 20 February 2009 for permission to appeal other orders. Those conditions required security for costs, payment of outstanding costs, and payment into court of approximately $10 million. The central issues were whether the judge’s discretion had been wrongly exercised and whether the permission conditions should be varied.

Lord Justice Aikens delivered the judgment, with Lord Justice Rimer agreeing.

1. Passport application. The refusal of the seventh application was a discretionary decision. The Court of Appeal found no basis for intervention. The judge had been entitled to consider the absence of significant changes, the applicant’s flight risk, and his failure to comply with previous orders. The decision was neither plainly wrong nor affected by the taking into account of an irrelevant matter or the omission of a relevant matter. The application for permission to appeal was refused.
2. Variation of permission conditions. The court declined to grant the requested further 28-day period for exploring payment arrangements. Although the court recognised that approximately $10 million was a substantial sum, there had been no evidence of difficulty when the original conditions were imposed.
3. The conditions were nevertheless varied on strict terms. The applicant had to pay £80,000 security for costs by 4 pm on 8 April 2009 and outstanding costs of £204,517.48 by 4 pm on 21 April 2009. Strict compliance with both conditions was a necessary precondition to the appeal proceeding; failure to comply with either would result in the appeal standing dismissed.
4. The applicant had to pay the approximately $10 million into court by 4 pm on 28 April 2009. If payment could not be made, an application for an extension had to be made before expiry of that deadline, on notice to the claimants, and heard no later than the week commencing 11 May 2009. The application to vary was granted only to that extent.

• Court of Appeal (Civil Division): The application for permission to appeal the refusal of passport return was refused. The application to vary existing permission conditions was granted in part.
• High Court, Commercial Court: David Steel J refused the applicant’s seventh application for return of his passport on 19 March 2009.