Banco Central De Venezuela v The Governor And Company of the Bank of England & Ors

A case management stay may be ordered where pending appellate proceedings substantially overlap with issues fixed for determination in the present case. The court should balance the disadvantages of proceeding, including the risk of deciding an issue which may later prove irrelevant or constitutionally sensitive, against any practical benefit of continuing. Expedition is not decisive where the anticipated hearing would produce no immediately usable result and could congest or complicate the litigation. Costs consequences may mark non-compliance with an earlier costs order, even where an unless-order application is not ultimately granted.

The claimant brought proceedings concerning the recognition of competing Venezuelan boards and the control or release of assets. The litigation had proceeded through expedited stages, and a further hearing was provisionally listed for January. An appeal concerning preliminary issues was pending before the Supreme Court. The court was asked whether the present proceedings should be stayed pending that decision and how the costs of an unless-order application should be dealt with.

The central issues were whether the overlap with the Supreme Court appeal made a case management stay appropriate, and what costs order fairly reflected delayed compliance with an earlier costs order.

1. Case management stay. The court exercised its discretion to stay the case pending the Supreme Court’s decision. The January hearing was substantially predicated on the correctness of the Court of Appeal’s approach to the preliminary issues. If the Supreme Court rejected that approach, some issues would never arise. The Supreme Court’s decision could also affect the proposed treatment of the STJ judgments.
2. The court balanced the advantages and disadvantages of proceeding. The dispute was constitutionally and politically sensitive, and proceeding risked making a finding of implied recognition which might later prove impermissible or irrelevant. The original urgency had also diminished because the January hearing would not enable either board to obtain and use the money, and any result would remain contingent on the Supreme Court appeal.
3. The possible advantage of advancing the debate by a limited period was insufficient to outweigh the risks of duplication, congestion and an effectively unusable determination. A stay was therefore ordered.
4. Costs. The court reserved the “source of funds” issue insofar as it might affect the parties question or costs in the Supreme Court appeal. Delayed payment of the earlier costs order warranted some recognition in the costs order, but the court had not determined the unless-order application and considered it uncertain whether such a serious order would have been made.
5. The claimant was not awarded the costs of the unless-order application, either on the standard or indemnity basis. Instead, those costs were made contingent on the outcome of the Supreme Court appeal: they would be recoverable if the relevant board succeeded, but not if it did not.

• Court of Appeal: Considered preliminary issues and held that the answer from the Foreign and Commonwealth Office was insufficient, warranting further examination.
• Supreme Court: Permission to appeal had been granted, and the appeal was pending when this court ordered the stay.
• High Court (Commercial Court): The present proceedings were stayed pending the Supreme Court’s decision.