Barclays Bank Plc v Scott Dylan & Ors

On an application to adjourn a return hearing for interim freezing relief, the guiding question is whether the hearing would be unfair if it proceeded. The court must also apply the overriding objective, including the need for fairness, proportionality, expedition, equal participation and proper use of court resources. A late adjournment application requires a convincing explanation, particularly where the applicant has had a prior opportunity to address the relevant evidence. The court may refuse an adjournment where the alleged evidential difficulties are self-created, the parties have had ample opportunity to prepare, and the hearing can fairly proceed.

Barclays Bank Plc sought continuation of freezing injunctions granted in two related proceedings against individual and corporate respondents. The respondents applied at the last minute to adjourn the substantive return hearing so that they could consider and answer extensive evidence served by the bank. They alternatively sought continuation of the injunctions on an interim basis with permission to challenge them later without showing a material change of circumstances.

The central issue was whether proceeding with the return hearing would be unfair to the respondents, having regard to the timing and extent of the evidence, the parties’ prior opportunities to respond, and the overriding objective.

1. The adjournment application was refused. The return hearing could fairly proceed, subject to a short adjournment to enable counsel to take instructions.
2. The guiding principle on an adjournment application is whether the hearing would be unfair if it went ahead, as stated in Bilta (UK) Limited v Tradition Financial Services Limited [2021] EWCA Civ 229. That question must be considered alongside the overriding objective, including fairness, proportionality, expedition, equal footing, effective participation, appropriate use of court resources and compliance with procedural requirements.
3. Much of the bank’s evidence was genuinely responsive to the respondents’ evidence. The remaining material principally concerned later events involving most of the respondents. The respondents had nevertheless been given repeated opportunities to explain the relevant restructuring and had failed to do so or to indicate a willingness to do so.
4. The application was made only shortly before the hearing, without a compelling explanation for the delay. The court was entitled to take that lack of notice into account, following the approach discussed in Fitzroy Robinson Limited v Mentmore Towers Limited [2009] EWHC 3070 (TCC).
5. The respondents’ evidential difficulties were, in any event, self-created. They could have prepared evidence in response to the bank’s anticipated further evidence but had chosen not to do so. Proceeding with the return hearing would therefore cause no unfairness.
6. The alternative proposal was also rejected. The freezing relief would continue through the effective return hearing rather than leaving open a later challenge without the usual requirement to show a material change of circumstances.