Rubenstein v HSBC Bank

An appeal may be allowed in part where a discrete issue remains dismissed. A cross-appeal may be dismissed and the lower court’s order set aside, with judgment entered for an agreed sum and consequential costs directions. Permission to appeal to the Supreme Court may be refused where particular factual allegations make further appellate consideration unsuitable, and any wider-importance issue should be considered by the Supreme Court itself.

The appellant appealed against an order made by HHJ Havelock-Allan QC in the High Court of Justice, Queen’s Bench Division, on 13 September 2011. HSBC Bank brought a cross-appeal. The appeal included an issue concerning an ex gratia payment. The supplied transcript records the parties’ absence and the resulting orders, but does not set out the underlying merits arguments or detailed factual findings.

1. Disposition. The appellant’s appeal was allowed except in respect of the ex gratia payment issue, which was dismissed. The respondent’s cross-appeal was dismissed.
2. Effect on the lower order. The order of HHJ Havelock-Allan QC dated 13 September 2011 was set aside, including the costs order and the order for an interim payment of costs of £150,000.
3. Judgment and repayment. Judgment was entered for the appellant in the agreed sum of £112,543.28, inclusive of interest of £6,509.13 to 12 September 2012 and after offsetting the ex gratia payment. The sum was payable by 4pm on 3 October 2012. HSBC Bank was also required to repay the £150,000 interim payment, with interest at 1 per cent above its base rate from 4 October 2011 until repayment.
4. Costs. HSBC Bank was ordered to pay the appellant’s costs of the proceedings below, the appeal and the cross-appeal, subject to the specified standard and indemnity bases. The appellant was responsible for the costs relating to the ex gratia issue up to 3 May 2012. Interim payments of costs totalling £625,000 were ordered.
5. Supreme Court permission. Permission to appeal was refused. The court considered that the particular factual allegations might make further Supreme Court consideration unsuitable. Even if the issues had wider importance, the Supreme Court should decide for itself whether permission should be granted. The costs provisions were stayed pending any application for permission.

• Court of Appeal (Civil Division) — In [2012] EWCA Civ 1335, the appellant’s appeal was allowed except on the ex gratia payment issue, the respondent’s cross-appeal was dismissed, and the High Court order was set aside.
• High Court of Justice, Queen’s Bench Division — HHJ Havelock-Allan QC made an order dated 13 September 2011, which was set aside by the Court of Appeal.