Catalyst Management Services v Libya Africa Investment Portfolio

On 6 February 2017, the appellant was ordered to provide security for the respondent’s costs of the claim brought by the appellant, such security to be provided by 20 February 2017. The appellant failed to do so and, on the respondent’s application, the court made an order for the provision of security by 21 March 2017, failing which the claim would be struck out. Again, the appellant failed to provide security and the claim was struck out without further order on 21 March 2017. The appellant then applied to set aside the order for security made on 6 February 2017 (the February order). For the reasons stated in a judgment given on 6 April 2017, Andrew Baker J, sitting in the Commercial Court, refused an adjournment and dismissed the application. The appellant appeals against that order.

It is unnecessary to say much about the underlying claim. The appellant is a company incorporated in the United Arab Emirates,whose sole director and shareholder is Mr Zia Qureshi. The respondent is an organisation incorporated in Libya, holding very substantial investments as part of Libya’s sovereign wealth fund. The claim related to management and consultancy services allegedly provided by the appellant to the respondent under a written agreement made in 2009.The claim was forfees of a little under US$15.5m and damages for wrongful termination of the agreement. The respondent defended on grounds that included a compromise said to have been made and performed. Summary judgment for the fees was granted by Master Kay QC in July 2015 but was set aside on appeal by Burton J under a consent order made in May 2016. Case management directions were given then and subsequently, with a 3-week trial listed to start on 25 April 2017.

It is, however, necessary to set out in more detail the sequence of events that led to the order under appeal.

The application for security for costs was originally issued by the respondent on 30 December 2015. It was opposed by the appellant and evidence was filed by both parties. It was due to be heard in October 2016 but was adjourned and re-listed for hearing on 6 February 2017 before Teare J.

A skeleton argument dated 3 February 2017 and signed by leading and junior counsel then acting for the appellant was provided to the respondent’s solicitors at 4.30 pm on that day. At the start of the skeleton, counsel stated that “it was not possible to lodge this skeleton until funding had been agreed (which has only just taken place) given that, as explained below, the availability of funding would (and has) fundamentally changed the Claimant’s position (since it would no longer be the case that requiring security would stifle the action)”. At paragraph 4 of the skeleton, counsel stated:

“Hitherto CMS has opposed the application for security for costs on various grounds, most notably that an order for security for costs would stifle the action. However, CMS has very recently (today) concluded an agreement for third party funding and, therefore, it no longer contends that the action would be stifled by an order for security. As a consequence, CMS no longer opposes an order for security for coasts in principle. It is prepared to offer security for costs, in a form to be agreed or as the court may direct, in the sum of US $1.75 million, to be paid by deposit into Dechert’s client account within 21 days of the date of the hearing.”

The skeleton continued that what remainedin issue was theamount of the security to be provided and whether the appellant should disclose details of the terms of the funding that it had secured. The appellant opposed such disclosure, saying that the respondent had no legitimate need for it. The application for disclosure was not pursued before Teare J.

Teare J ordered that the appellant should provide security in the sum of $1.75m by payment into the client account of its then solicitors, Dechert LLP, by 4.30pm on 20 February 2017. Dechert undertook to hold that sum to the order of the court. The order provided for liberty to apply in the event of default.

The appellant defaulted in the provision of security. No sum was paid into Dechert’s client account for this purpose. Accordingly, on 23 February 2017 the respondent issued an application seeking either an order to strike out the claim or an order that unless the appellant complied fully with the order for security by 4.30pm on the third working day after the date of the order, the claim be struck out.

In response, the appellant issued an application on 3 March 2017 seeking an order that:

“(1)

the proceedings be stayed for a period of 10 weeks

(2)

should the Claimant not provide security for the Defendant’s costs and pay the costs of the Defendant’s application as ordered by Teare J on 6 February 2017 by the end of that period, its claim shall be struck out

(3)

provided security for costs is provided and the costs referred to above are paid, the trial date shall be adjourned for the next available Commercial Court date and new directions shall be issued by the Court”

The grounds for the proposed order stated in the application notice were:

(1)

the Claimant concluded an agreement for third party litigation funding on 3 February 2017 but the funder decided not to proceed with the funding

(2)

a period of 10 weeks in which to secure third party funding is reasonable, given that third party funders will wish to conduct their own due diligence on the case and funding terms will need to be agreed between the parties

(3)

the Claimant is otherwise impecunious, which is a direct result of the Defendant not paying sums due and owing to the Claimant and its wrongful termination of contract

(4)

as a result of the period of time required in which to obtain funding, it inevitably puts the trial date at risk.”

The appellant’s application was supported by a witness statement made by Mr Qureshi, also dated 3 March 2017 (his witness statement). In his witness statement, Mr Qureshi said:

“18.

As a result of CMS’ lack of resources, it has been necessary for it to seek litigation funding for it to have any opportunity of pursuing its claim to trial.

19.

On 3 February 2017, CMS concluded an agreement for third party funding with a UAE-based litigation funder. CMS referred to this agreement in its skeleton argument dated 3 February 2017 for the purposes of the security for costs hearing on 6 February 2017 [ED-5/10¶4].

20.

As a result, CMS did not oppose an order for security for costs in principle and agreed with LAP that it would offer security in the sum of US$1.75 million (LAP having sought security in the sum of US$2.4 million).

21.

However, despite entering into the funding agreement, the funder did not proceed with the funding. This means that CMS has so far been unable to make payment of the security amount into its solicitor’s (Dechert LLP (Dechert)) client account, nor make payment to LAP for its costs of the security for costs application, in accordance with the order of Teare J dated 6 February 2017 [ED-5/1-2]. For the avoidance of doubt, I consider that the funder has defaulted on the agreement but, whether that is right or wrong. CMS has not received and does not expect to receive funds from that funder….

24.

When it concluded the agreement referred to above, CMS stopped discussions with other potential funders. CMS is now urgently seeking alternative funding and has taken substantive steps in this regard. I have today been informed that there is an offer of third party funding (conditional upon the completion of due diligence over the coming days) which will provide funding for LAP’s security for costs and to fund CMS’s claim to trial. It is currently anticipated that this funding could be in place shortly, and even in advance of the hearing on Friday 10 March 2017. CMS will of course keep LAP and the Court informed of any positive developments. Separately, CMS has entered into a non-Disclosure Agreement with a major UK-based commercial litigation funder and is in discussions with two other potential funders, one of whom has asked for 21 days to complete its due diligence on the matter and document funding terms. CMS is also in discussions with an ATE insurance provider. I therefore believe that there is a good prospect of CMS obtaining funding and ask for time to enable CMS to do so.

25.

On 24 February 2017, CMS notified LAP of its lack of funding, requesting a six week extension of time for the provision of security and noting that the Court timetable would have to be extended accordingly which would place the trial date at risk [ZQ/428]. This is a most unfortunate consequence of CMS’s third party funding arrangements having collapsed, through no fault of its own. However, on 26 February 2017, LAP rejected any proposed extension of time and/or adjournment to the trial date [ZQ/429 – 431]. Consequently, CMS issued the CMS Application.

26.

A period of 10 weeks in which to secure third party funding is reasonable, given that third party funders will wish to conduct their own due diligence on the case and funding terms will need to be agreed between the parties. Of course, CMS will seek to expedite this process as much as possible.”

In the conclusion section of his witness statement, Mr Qureshi said:

“44.

Whilst CMSwants to provide security for costs and pursue its claim to trial as quickly as possible, it is currently not in a position to do so. It is urgently seeking to obtain funding. The inability of CMS to draw down funding under the funding agreement concluded on 3 February 2017 is a change of circumstances since Teare J made his order which justifies the Court taking a different approach because it is impossible for it to provide security as matters stand and, if the LAP Application were granted, CMS would be prevented from pursuing its claim as a result of its impecuniosity.

45.

As set out above, CMS is of the view that it would be manifestly unjust for its strong claim against LAP to be struck out for failing to provide security given that it is currently unable to comply with the order to do so, particularly where CMS’ impecuniosity has been caused directly by the actions of LAP.

46.

CMS has made extensive and bona fide efforts to obtain third party for its claim and it is very unfortunate that its current funding arrangement has collapsed at such a late stage. For the reasons given above, CMS requests that an order in the form annexed to the Application Notice for the CMS Application be granted. Once funding is obtained, CMS expects that it would be able to provide security for LAP’s costs, pay the outstanding costs order and fund its claim to trial.

47.

CMS deeply regrets the position that the proceedings be stayed and the trial date adjourned, and was always working strenuously towards being ready for the trial date as originally set for 25 April 2017. However, the lack of funding at this late stage has left it with no other option other than to issue the CMS Application seeking such terms.”

Mr Qureshi concluded by saying that “CMS accepts that its claim will have to be struck out if it cannot obtain funding and provide security for costs in a short period of time from now”.

These applications were heard by Teare J on 10 March 2017. Paragraph 1 of his order made on that date provides:

“Further to paragraph 1 of the Order of Mr Justice Teare dated 6 February 2017, unless the Claimant:

(1)

makes payment of the sum of US$1.75 million into Dechert LLP’s client account by way of security for the Defendant’s costs of these proceedings, with written notification of the same from the Claimant to the Defendant; or

(2)

obtains an ATE insurance policy in reasonably satisfactory form and for an amount of not less than US$1.75 million, and provides a copy of the policy to the Defendant; or

(3)

provides to the Defendant a guarantee in respect of the Defendant’s costs of these proceedings from a first class London bank in reasonably satisfactory form in the sum of US$1.75 million;

by 4;30pm on 21 March 2017, then the Claimant’s claim shall be struck out and the Claimant shall pay the Defendant’s cost of the action, to be assessed if not agreed.”

Paragraph 2 of the order provided that if the appellant proposed to provide security by means of an ATE insurance policy, it should supply a final draft of the policy to the respondent by 4pm on 15 March 2017. If the respondent objected to the proposed policy it was required to state brief reasons by noon on 16 March and any dispute was to be determined at a hearing before Teare J on 17 March. The judge also gave directions leading up to trial, which continued to be listed to start on 25 April2017.

The appellant elected to provide security by means of an ATE insurance policy but the respondent objected to its terms. On 17 March 2017, Teare J upheld the objections but gave the appellant until 20 March to provide a further draft policy, with similar provisions in the order to deal with any objections raised by the respondent. The respondent did object to the policy then produced and at a hearing on 20 March Teare J again upheld the objections.

With no security provided by 4.30pm on 21 March 2017, the claim was automatically struck out in accordance with paragraph 1 of the order dated 10 March 2017.

It was against this background that the appellant issued its application dated 28 March 2017 by which it sought orders (i) setting aside the February order and (ii) giving the appellant relief from sanctions and maintaining the trial date. The reasons stated in the application notice were:

“(1)

There has been a material change in the Claimants’ circumstances which provided the grounds for the Order dated 6 February 2017 to be set aside;

(2)

If the Claimants’ claim is struck out, this will stifle a meritorious claim which will cause serious injustice.”

This application was supported by a witness statement made by Irene Ann Dallas, a sole practitioner carrying on practice under the name Dallas & Co who had been instructed by the appellant in place of Dechert in early March 2017. She stated that Mr Qureshi had read and approved her statement before she signed it. In her statement Ms Dallas referred to the February order and continued:

“37.

The Claimant agreed to provide security because Decherts had informed the Claimant that they were holding funds from the funder and because a Funding Agreement had been signed on 3 February 2017 [Exhibit IAD2, Tab 14]. The funder had agreed to provide funds in respect of security for costs and also to fund the litigation.

38.

However, on 17 February 2017 the Claimant was advised that the funder had decided not to proceed and that Decherts did not have the money in their client account.

39.

This was a complete shock to the Claimant as now they were faced with a Court order with which they could not comply and no way to continue to fund the case.”

The exhibit referred to in paragraph 37 was an email dated 3 February 2017 from Dechert to Mr Qureshi and to the appellant’s in-house counsel. It attached a draft funding agreement for signing (which has not been in evidence), but the email makes clear that it includes new provisions requiring agreement. The emails states “we need the agreement to be signed as soon as possible in light of the security for costs hearing and CMS’s skeleton argument in relation thereto”. This must be a reference to the passages in the skeleton dealing with funding to which I have earlier referred. The email also stated that Dechert were holding funds on behalf of a person whose name has been redacted, but who has subsequently been confirmed as the proposed funder.

As appears from the application notice dated 28 March 2017, the ground advanced for setting aside the February order was that there had been a material change in circumstances since that order, as described in Ms Dallas’ witness statement, namely that a funding agreement had been signed on 3 February 2017 but the funder had withdrawn on 17 February 2017.

This application came before Andrew Baker J on 6 April 2017 when he dismissed it for the reasons set out in his judgment given that day.

The application was made under CPR 3.1(7) which provides that “A power of the court under these Rules to make an order includes a power to vary or revoke the order”.

This is a discretionary power, the proper application of which was considered in detail by this court in what remains the leading case, Tibbles v SIG plc [2012] EWCA Civ 518; [2012] 1 WLR 2591. After a detailed review of the authorities, Rix LJ (with whom Etherton and Lewison LJJ agreed) set out at [39] the conclusions to be drawn. For present purposes, it is necessary to cite only part of that paragraph:

“(ii)

The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

(v)

Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where the decision not to mention them is conscious or deliberate.”

The judge rejected the stated ground of the application. The evidence before the court as to the existence of litigation funding on 6 February 2017 was, the judge held, “wholly unsatisfactory”. Apart from the bare assertion by Mr Qureshi in his witness statement that on 3 February 2017 the appellant had concluded an agreement for third party funding with a UAE-based litigation funder, the only evidence on which the appellant relied was the email of 3 February 2017 exhibited by Ms Dallas. The email, however, clearly showed that there was no agreed funding in place at the time of the email, which I note was 10.58 pm. In those circumstances, the judge was not prepared to accept that there had been a concluded funding agreement in place at the time of the hearing before Teare J on 6 February 2017. It followed that there had been no change of circumstances since that hearing.

With some quick thinking and ingenuity, counsel appearing for the appellant (who had not appeared before Teare J on 6 February 2017) submitted that there had therefore been a misstatement to the court on a matter that went to the basis on which the order had been made, thereby providing grounds for revoking the February order. The judge rejected this attempt, as he put it, to finesse the application from one based on a change of circumstances to one based on a misstatement, in circumstances where the rejection of the former case was based on the appellant’s own unsatisfactory evidence. He said:

“In circumstances where, for the reasons I have given, the finding that there was not in truth any material change in the claimant’s circumstances flows from the unsatisfactory evidence the claimant has chosen to provide to the court with its application, it does not seem to me appropriate to allow it to finesse the application to one of misstatement by counsel, on the face of things on instructions from the claimant, as to the position. I can only say that from the email to which I have already referred – that being the only material I have been provided by reference to which to judge the matter properly – the claimant could not reasonably have understood that it had unqualified access to funding so as to be able to give that reassurance to the court. In those circumstances, the misstatement of the position to the court, if that is the way in which the matter were to be analysed, is not something which would, in the circumstances of this case, justify, in my judgment, a reconsideration of the grant of the order of security in the first place.”

The judge went on to provide what, in his view, was in any event an overriding reason for rejecting the appellant’s application, whether based on change in circumstances or a material misstatement. He said:

“37.

More importantly than any of that, however, even if there were, which I have not been able to find, a material change of circumstance, or if I allowed the application to be put on the basis of a material misstatement of the circumstances to the court on 6th February 2017, all of that – that is to say what the claimant now says to be the true position – was both before the court on each of the three occasions when the matter came back before it, and it was before the court by reason of being ventilated in detail by Mr Qureshi, in his statement, and relied upon by the then counsel for the defendant in support of such submissions as were made as to what action the court should then take.

38.

Furthermore, I have already noted that in the light of all of that matter Mr Qureshi, on behalf of the claimant, explicitly accepted the time had come for an unless order and that the claim needed to be struck out, and was bound to be legitimately and properly struck out, if the claimant could not provide satisfactory security for costs in short order in the, as it is now said to me new and changed circumstances, but nonetheless in the circumstances as they then obtained as of 10^th March.

39.

This is therefore not a normal set aside case, nor a normal relief from sanctions case. Subject to one point I have mentioned already in passing and said I would need to come back to, nothing has happened that, in my judgment, is any different in kind or degree to that which was in terms anticipated and considered by the court when the orders imposing and then on two occasions confirming the sanction of striking out the claim were made and indeed in which circumstances, as I have indicated, the imposition and confirmation of that sanction was openly offered and accepted as appropriate by the now applicant for relief.”

The appellant challenges the judge’s conclusion on each of these points.

I will first summarise the challenge as presented in the grounds of appeal. It is, of course, only on these grounds that the appellant has permission to appeal.

As regards the change of circumstances, ground 1 is that the judge gave insufficient weight to the email dated 3 February 2017. It is said that the statement in the email that the solicitors were in funds should have been given more weight because either it suggested that the funding had actually been agreed or the solicitor’s statement was clearly incorrect. Accordingly, it is said that if proper weight had been given to the email, the judge should not so readily have dismissed the possibility that a funding agreement was in place.

As regards the judge’s rejection of the case based on misstatement, it is said that the judge did not engage with it and was wrong to say that the appellant could not have reasonably believed that it had access to funding. He should have accepted that the facts had been misstated to the court, and on that ground revoked the February order.

As regards the overriding ground on which the judge rejected both grounds for the application, it is said that the hearings in March were a continuation of the hearing on 6 February 2017, addressing how and when security was to be provided but not concerned with whether security should be provided. The appellant was therefore right to seek to revoke the February order only once the prior process had been exhausted and after the deadline on 21 March 2017 for the provision of security had passed.

Mr Nicholls QC, who appears today for the appellant and did not appear below, was instructed after the grounds of appeal were settled and a skeleton argument filed in support of the appeal. With permission, he filed a supplementary skeleton. In that skeleton, he shifted the focus of ground 1 from a change in circumstance arising from the funder not proceeding with a funding agreement concluded before 6 February 2017 to one arising from a change in the understanding of the appellant as to the existence of available funding.

At the hearing of the appeal today, Mr Nicholls sought to run arguments that (i) there had been a concluded funding agreement in existence on 6 February 2017 with which the funder subsequently refused to proceed, thus giving rise to a change of circumstance and (ii) the statements made to the court on 6 February as to the existence of a concluded funding agreement were wrong, and there was therefore a misstatement of the facts on which the February order was made. Mr Nicholls sought to justify the adoption of these inconsistent positions by saying that, if the judge was right to find that no funding agreement had been concluded, it followed that there must have been a misstatement.

In my judgment, the appellant was not permitted to present this court or the court below with two inconsistent positions based on facts which were clearly within its own knowledge. It knows the truth of the matter, which it should have put fully in evidence before the court at first instance. The evidence that was before the court was, in the judge’s words, wholly unsatisfactory. Apart from the bare assertion by Mr Qureshi in his witness statement, the only evidence relied on for the existence of a concluded funding agreement was the email sent to him by Dechert on 3 February 2017. However, that email made clear that there was not at that time a concluded funding agreement. The skeleton argument, no doubt prepared by counsel on instructions and asserting the existence of a funding agreement, was sent to the respondent’s solicitors some hours before the email to Mr Qureshi. This accounts for the reference in the email to the need for the agreement to be signed as soon as possible in the light of the skeleton argument.If a funding agreement was made, it must have been after the email but neither the agreement nor any evidence of it has been produced. That does not mean that there was not a concluded agreement from which the funder later resiled. It means only that the appellant has not produced satisfactory evidence of it. Its failure to produce adequate evidence does not permit the appellant to run an alternative and inconsistent case that it had misunderstood the position.

I turn then to the grounds of appeal advanced by the appellant.

Ground 1is in my judgment without substance. The email was clear in its terms that a funding agreement had not yet been made. It stated that Dechert were holding funds on behalf of a person whose name is redacted but who was in fact the funder. The judge was clearly right in saying that it provided no evidence of a concluded funding agreement. Given that no satisfactory evidence was given of the alleged concluded agreement, whether by producing the agreement or otherwise, the judge was entitled to find that the appellant had failed to establish a change in circumstances.

As I have mentioned, Mr Nicholls QC sought to recast this ground. He submits that the evidence showed that the appellant believed that there was funding available on 6 February 2017 and the circumstances changed when that belief was shown to be wrong.

Leaving aside any question whether the appellant has permission to appeal on this ground, it is, in my judgment, unsustainable on the evidence. Beyond the bare assertion by Mr Qureshi in his witness statement, there is no evidence of his belief, and therefore the appellant’s belief, in the existence of a concluded funding agreement in place by 6 February 2017. He was a recipient of the email of 3 February 2017 and cannot be taken to have understood it as showing there was a concluded agreement. He knew the name of the UAE-based funder but has not disclosed it. It is said on his behalf that Dechert told him that “they were holding funds from the funder”. If that is a reference to the email, he was also informed that Dechert were holding those funds for the funder and that an agreement had yet to be signed or indeed finally agreed. It would have been very straightforward for Mr Qureshi to have made a witness statement and exhibited relevant documents for the hearing before Andrew Baker J. He did not do so and in those circumstances the evidential basis necessary for the recast ground that the appellant now wishes to advance is lacking.

As regards ground 2, the judge clearly did engage with the misstatement case, because he rejected it on the basis that, on the evidence, there were no reasonable grounds for the misstatement. In my judgment, that was a proper basis for the judge’s rejection of this ground for the application. The appellant was seeking to rely, to its own benefit, on a misstatement which it had unreasonably made to the court. In my view, it is unquestionably open to a judge to reject an application to revoke an order in those circumstances. Further, it is not in my view correct to say that this misstatement, if that is what it was, was the basis, or a basis, on which the February order was made. The order was made on the basis that the appellant no longer opposed it, and the circumstances otherwise justified the making of the order. The stated belief of the appellant that funding was in place did no more than explain its withdrawal of opposition. In truth, the so-called misstatement case is a change of circumstances case or it is nothing.

These submissions of the appellant do not address the central point on which the judge relied. It is the appellant’s case that through Mr Qureshi it became aware on 17 February 2017 that funding was not available, and either there had been a change of circumstances or there had been a misstatement as to its availability. The appellant could then have applied to revoke the February order; I say nothing about whether such application could properly have succeeded. Instead, the appellant, which had the benefit of legal advice, chose to assert that it should, and would, provide security. Having thus, with full knowledge of the facts, in effect affirmed the order for security for costs, the judge was fully entitled to take the view that the appellant could not, when it failed to provide security despite several opportunities to do so, go back on the position it had taken and apply to set aside the February order. Further, the judge was right that on any footing there had been no change in circumstances since the orders which had been made in March 2017 on the appellant’s own application. It was the order dated 10 March 2017, not the February order, that provided for the claim to be struck out if security was not given by 21 March 2017.

In my judgment, these considerations in any event represented an insuperable obstacle to the application to revoke the February order and represent an insuperable obstacle to this appeal against the judge’s refusal to revoke it.

Although by a separate ground of appeal the appellant challenges the judge’s refusal to give relief against the sanction of striking out the claim, Mr Nicholls did not seek to pursue it if he failed on the revocation of the February order.

Finally, the appellant challenges the judge’s refusal of its application for an adjournment. The application was made on the basis of a short witness statement by Ms Dallas and provided just before the start of the hearing. The only statement of substance was one sentence: “I have been informed this morning that the claimant has secured funding for the future costs from a UK-based funder and an ATE policy up to £1.7 million”.No further evidence of this alleged funding was provided or indeed has since been provided and, in view of past experience, any judge would be entitled to regard this bald statement, in the judge’s words, as “entirely insufficient”.

The judge rejected the application for an adjournment on three grounds. First, the provision of security had been the subject of the numerous hearings before Teare J. The court had ordered that security was to be provided by 20 February 2017, later extended to 21 March 2017. The appellant was not entitled to any further extension of time. Second, the respondent would suffer very significant prejudice because the trial date had been lost and, if the claim were revived, it would not be tried for another year or so. Third, to quote from the judgment at [56] the court had “no real basis for concluding that, if put to further and better evidence on the point, the claimant will in fact provide satisfactory evidence showing that it might now provide security satisfactory to the defendant, or to the court, that the claimant has offered today that thoroughly uninformative, unattributed single sentence”. Something has gone wrong with that sentence as transcribed but its meaning is clear.

It is submitted for the appellant that, given the gravity of striking out the claim, the judge should have allowed the adjournment “to explore this issue further”. It is submitted that there was “a possible solution which, admittedly, needed to be investigated”. In my judgment, the time for exploring the possibility of security had long since passed.

As with the other decisions made by the judge, the grant or refusal of an adjournment was a matter for the judge’s discretion. The appellant can point to no error of principle in the judge’s approach nor to any factor wrongly ignored or wrongly taken into account. In my judgment, the judge was fully entitled to refuse the adjournment and gave solid reasons for doing so. I would add that in my view he was clearly right to do so, although that is not relevant in circumstances where the judge has properly exercised the discretion conferred on him.

I would accordingly dismiss this appeal.

I agree.

I also agree.