Barclays Bank PLC v Scott Dylan & Ors

An adjournment application made shortly before a fixed hearing will be strongly disfavoured where the applicant had earlier opportunities to raise the issue and the resulting prejudice is self-created. The court must apply the overriding objective as a whole. The effect on the other party is relevant, but potential compensation in costs is not decisive. The court must also consider disruption to the court’s listing arrangements, efficient allocation of judicial resources, expedition, fairness and compliance with procedural obligations. A party cannot rely on evidence served late, or on a preferred but uninstructed advocate, to justify postponement. An application made without merit and outside the norm of ordinary commercial litigation may justify indemnity costs.

Global Investment Management Holdings, Inc applied at very short notice to vacate a three-day hearing window commencing on 29 November 2023. The hearing concerned Barclays Bank PLC’s application in related proceedings for third-party disclosure from Citibank under CPR rule 31.17.

The applicant argued that its preferred counsel was unavailable, that the application was complex, that the listed time estimate was inadequate and that the listing process had disregarded earlier directions. Barclays opposed the adjournment, relying on delay, disruption and prejudice. The issues were whether the listing decision was flawed, whether the hearing should be adjourned under the overriding objective, and what costs order should follow.

1. Application dismissed. The listing decisions were neither irregular nor flawed. The applicant had had full opportunities to make submissions about availability. At the first attended appointment, its preferred counsel stated that he was not instructed by the applicant. At the second, the applicant’s representative gave no sufficiently specific explanation for counsel’s unavailability. The listing decision was rational and reasonable.
2. The applicant could have instructed alternative counsel and had adequate time to do so. The matter was not shown to be unusually complex, and applications of this kind were commonplace in business cases. The late service of a substantial documentary bundle did not justify moving the hearing because the applicant was required to serve responsive evidence earlier.
3. The email from Deputy Master Henderson did not direct that the hearing take place between December 2023 and March 2024. It required further information about dates on which counsel was unavailable. The applicant’s contrary interpretation was rejected.
4. The governing question was whether, applying the overriding objective, a hearing fixed since 25 October 2023 should be adjourned shortly before it was due to take place. The application was made far too late, causing serious disruption to the claimant and the court’s diary. The court’s efficient allocation of resources and the conduct of other proceedings were important considerations. Possible recovery of costs was only one factor and did not answer those concerns. Any prejudice to the applicant was self-created, and uncertainty also existed about enforcement of any costs order.
5. The application was certified as wholly without merit. The court directed that, if necessary, a full day could be made available within the existing hearing window. Indemnity costs were appropriate. Costs of £15,000 including VAT were summarily assessed.