Stanford International Bank Ltd & Ors, Re

An application for permission to appeal must ordinarily be made to the lower court at the hearing at which the decision was made. The court has no jurisdiction to grant permission after that hearing has ended where no adjournment was sought to enable the application to be made. The Practice Direction does not retrospectively revive that jurisdiction. Any application for permission must therefore be made to the appeal court. Obiter, permission would also have been refused where a proposed ground had no real prospect of success and other grounds had not been argued at first instance.

Following judgment handed down on 3 July 2009, the receiver was given an indication that permission to appeal might be granted. Sir Allen Stanford did not apply for permission at the hearing and made no oral submissions on the issue. He later applied by email on 6 July 2009.

The issue was whether the High Court retained jurisdiction to grant permission after the hearing at which the decision was made had ended, particularly in light of CPR rule 52.3(2) and paragraphs 4.3B and 4.6 of the Practice Direction supplementing CPR Part 52.

1. Application refused. The court had no jurisdiction to grant permission to appeal because the application was not made at the hearing at which the decision was made and no adjournment of that hearing had been sought for that purpose.
2. CPR rule 52.3(2) gives a party the choice of applying to the lower court at the relevant hearing or applying to the appeal court in an appeal notice. Paragraph 4.6 of the Practice Direction states that an application should be made orally at that hearing. Paragraph 4.3B permits an adjournment where a party requests further time, but does not confer a free-standing power to reopen a concluded hearing after the event.
3. The judge preferred the reasoning in Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2228 (Comm) to the contrary view expressed in Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 236 (TCC). The approach was consistent with the Court of Appeal’s explanation in Jackson v Marina Homes Ltd [2008] C.P. Rep. 17.
4. Obiter, even if jurisdiction existed, permission would have been refused. The first proposed ground had no real prospect of success. The other grounds had not been argued at first instance, and it would have been for the Court of Appeal to decide whether to entertain them.

The judgment records that this court had handed down an earlier judgment on 3 July 2009. The present decision concerned a subsequent application for permission to appeal. No appeal-stage decision is stated.