Deutsche Bank AG London Branch v Receivers Appointed By the Court & Ors

Where a court has recognised a foreign constitutional office-holder, consequential declarations should reflect only the issue actually decided. The court should avoid making findings on related questions, such as recognition of a government, where those questions were not determined or argued.

A party seeking to make persons outside the jurisdiction personally liable for costs must use the appropriate procedure, including service and an opportunity to respond. Permission to appeal should be refused where the proposed ground has no real prospect of success, notwithstanding the importance of the issues.

Following an earlier judgment concerning the United Kingdom Government’s recognition of Juan Guaido as constitutional Interim President and head of state of Venezuela, the court considered consequential declarations, costs, joinder of rival board members, and permission to appeal.

The court was also asked whether the proceedings should be stayed because certain issues were non-justiciable, and whether those issues were subject to an issue estoppel. That question was not resolved at the consequentials hearing.

1. Declarations. The court made the declaration sought by the Guaido interests that Her Majesty’s Government had formally recognised Juan Guaido, and not Nicolas Maduro, as constitutional Interim President and head of state of Venezuela since 4 February 2019. It declined to add wording concerning recognition of the government because that issue had not been decided or argued.
2. Further consequential declarations. The court declined to make declarations concerning the Guaido Board’s authority to represent the Central Bank, the authority of the Special Attorney General, and the validity of Mr Ortega’s appointment. The distinction between non-justiciability and determination on the merits, together with the suggested consequence of a stay, required fuller argument and was reserved.
3. Costs. The Guaido interests had won both preliminary issues and were awarded their costs of those issues. Costs of the wider actions were reserved as premature.
4. Joinder. The court refused to join the individuals comprising the rival boards for the purpose of making them personally liable for costs. Persons outside the jurisdiction would ordinarily require service, notice of the application and an opportunity to respond. A further properly issued and served application could be made.
5. Permission to appeal. Permission was granted on the limited justiciability issue concerning whether non-justiciability extends to allegedly unlawful Acts of State in the country where they occurred. Permission was refused on recognition because the Government had spoken clearly and the proposed argument had no real prospect of success. The importance of the issue and its connection with justiciability did not justify permission.

The judgment records the court’s earlier judgment and consequential applications but does not state its citation. Permission to appeal was granted on a limited justiciability issue and refused on the recognition issue.