Plantation Holdings (FZ) LLC v Dubai Islamic Bank PJSC

An appellate court will not interfere with a case-management decision where the judge applied the correct principles, considered the relevant matters and reached a decision within the generous ambit of the discretion entrusted to the judge.

When deciding whether actions should be tried together, the court may give substantial weight to preserving an imminent trial where the applicant delayed in bringing related proceedings and a combined trial would require a lengthy adjournment. A person who neither participates in nor is a party to an earlier action will not ordinarily be bound by its factual or legal findings. An order for alternative service cannot provide a freestanding foundation for jurisdiction or circumvent the requirement to obtain permission to serve a claim form outside the jurisdiction.

Plantation Holdings (FZ) LLC brought proceedings against Dubai Islamic Bank PJSC concerning the Bank’s enforcement of security over a development in Dubai. A separate Commercial Court action brought by the Bank against other defendants was due to begin within weeks.

Flaux J refused Plantation’s applications for the actions to be consolidated or tried together and for the second action to be served by an alternative method on the Bank’s English solicitors. Plantation appealed, contending principally that separate trials might bind or prejudice it without participation, compromise its right to a fair trial under Article 6, and create inconsistent findings.

The central questions were whether the judge’s case-management decision justified appellate intervention and whether alternative service could be ordered before Plantation obtained permission to serve the Bank outside the jurisdiction.

1. Appeal dismissed. The Court of Appeal had no hesitation in holding that Flaux J’s case-management decision was clearly right. An appellate court should not interfere where the judge applied the correct principles, considered the relevant matters, excluded irrelevant matters and reached a decision within the generous ambit of the entrusted discretion. The court followed the approach in Royal & Sun Alliance Insurance v T&N Ltd [2002] EWCA Civ 1964 and applied the particular caution identified in Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 92 concerning decisions made by specialist judges close to trial.

2. Joinder under rule 19.2 of the Civil Procedure Rules 1998 had not been sought. Consolidation was inappropriate because the Bank was claimant in one action and defendant in the other. Although an earlier application for trial together might have had strong grounds, the late application would have required an imminent three-week trial to be adjourned for nine months to a year and expanded to four or five weeks.

3. The judge was entitled to give considerable weight to the parties’ interests in preserving the trial date. Plantation had long been aware of the potential claim and had delayed issuing it. Its additional issues required further investigation, disclosure and evidence, so the Bank could not be ready to try the second action on the existing date.

4. Separate trials did not compromise Plantation’s right to a fair trial under Article 6 of the European Convention on Human Rights. As Plantation would neither be a party to nor participate in the first trial, its findings would not bind Plantation in rem or through res judicata or issue estoppel. The judge hearing the second action would remain free to reach different factual and legal conclusions on the evidence presented there.

5. The possibility of inconsistent findings and duplicated resources was unsatisfactory, but resulted from Plantation’s delay. Neither the overriding objective nor section 49(2) of the Senior Courts Act 1981 required the actions to be tried together. Questions about later case-management directions or allocation of the second trial were premature.

6. Plantation accepted that alternative service under rule 6.15 could not circumvent the need for permission under rule 6.36 to serve outside the jurisdiction. It had to seek that permission in the ordinary way and make any application for alternative service as an ancillary application.

1. Court of Appeal (Civil Division): Permission to appeal was granted because of the urgency, but the appeal was dismissed: [2013] EWCA Civ 1229.

2. High Court, Queen’s Bench Division, Commercial Court: Flaux J, by an order dated 13 September 2013, dismissed Plantation’s applications for the related actions to be consolidated or tried together and for alternative service on the Bank’s English solicitors. No neutral citation for that decision is stated.