Case Nos: 13338 and 13959 Of 2009
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
THE HONOURABLE MR. JUSTICE LEWISON
IN THE MATTER OF STANFORD INTERNATIONAL BANK LIMITED, STANFORD GROUP COMPANY, STANFORD CAPITAL MANAGEMENT LLC, ROBERT ALLEN STANFORD, JAMES M. DAVIS, LAURA PENDERGEST-HOLT, STANFORD FINANCIAL GROUP, AND THE STANFORD FINANCIAL GROUP BUILDING INC (IN RECEIVERSHIP)
AND IN THE MATTER OF THE CROSS BORDER INSOLVENCY REGULATIONS 2006
Mr Antony Zacaroli QC and Mr Daniel Bayfield (instructed by CMS Cameron McKenna LLP) for the Liquidators of Stanford International Bank Limited appointed by the High Court of Antigua and Barbuda.
Mr Stuart Isaacs QC and Miss Felicity Toube (instructed by Baker Botts (UK) LLP) for the Receiver appointed by the U.S. Court in respect of Stanford International Bank Limited and other Stanford entities.
Mr David Joseph QC (instructed by Addleshaw Goddard LLP) on behalf of Robert Allen Stanford.
Judgment
Mr Justice Lewison:
I handed down judgment on 3 July 2009. The date had been arranged for the convenience of counsel. At that hearing I indicated in the course of Mr Zacaroli’s submissions that I was minded to give the Receiver permission to appeal. As I subsequently said, one of the reasons was that there were two conflicting decisions on the correct approach to COMI: both of them my own.
I did not understand Mr Joseph to be applying for permission to appeal on behalf of Sir Allen Stanford. His supplemental skeleton argument said nothing about permission to appeal on his client’s behalf and he made no oral submissions on the subject. I did not intend to give permission to appeal to Sir Allen.
Mr Joseph has now applied for such permission by e-mail on 6 July 2009. That raises a potential jurisdictional problem. CPR 52.3 (2) provides:
“An application for permission to appeal may be made --
(a) To the lower court at the hearing at which the decision to be appealed was made; or
(b) to the appeal court in an appeal notice.”
Paragraph 4.3B of the Practice Direction, supplementing CPR Part 52, provides:
“Where no application for permission to appeal has been made in accordance with rule 52.3(2)(a) but a party requests further time to make such an application, the court may adjourn the hearing to give that party the opportunity to do so.”
Paragraph 4.6 of the same Practice Direction provides:
“An application for permission should be made orally at the hearing at which the decision to be appealed against is made.”
In Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2228 (Comm) Christopher Clarke J said:
“But the rules provide for the lower court to be able to grant permission at the hearing at which the decision to be appealed was made. On the facts of this case, the hearing at which the decision sought to be appealed was made was, as it seems to me, concluded on 25th July. Whilst it would have been open to Balmoral to apply for an adjournment of that hearing so as to enable them to make an application for permission to appeal before it ended, it did not do so. Since that hearing is over I regard myself as no longer able to grant permission. The rules provide a would-be appellant with a choice. He can apply to the lower court when the decision is made. If he needs more time he can ask for an adjournment of the hearing at which the decision is made in order to apply for permission on the date to which that hearing is adjourned. His subsequent application will then, by definition, be made at the adjournment of that hearing. If he does neither he must apply to the appeal court.” (Emphasis in original)
However, in Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 236 (TCC) Jackson J came to a different conclusion. He did so on the basis that there was no authority on the point, and so it appears that the previous decision of Christopher Clarke J was not cited to him. He said:
“It seems to me that I have got to interpret the provisions of Rule 52.3 and the provisions of the Practice Direction in a manner which is obviously consonant with the intentions of those who drafted these provisions. It will be noted that paragraph 4.3B of the Practice Direction begins with the words "Where no application for permission to appeal has been made in accordance with rule 52.3.(2)(a)." These words seem to me to contemplate a situation in which the original hearing has ended and the losing party has not applied for permission to appeal. One then comes to the following words: "but a party requests further time to make such an application, the court may adjourn the hearing to give that party the opportunity to do so." It seems to me that when those words are read in context they must confer a power on the court after the end of the hearing at which judgment was given to make an order adjourning that hearing to some other appropriate date in order to hear the application for permission to appeal. Whether or not the court will exercise that jurisdiction is another matter altogether. There must be good reason to do so. There must be good reason for the court to reconvene to hear an application for permission which could perfectly well have been made on the occasion when judgment was handed down. I would have considerable doubts that the court would or possibly could exercise this power after the expiry of the twenty-one day time limit. However, it seems to me that this court does have power under paragraph 4.3B of the Practice Direction and under rule 52.3(2) of the Civil Procedure Rules to hold a continuation of the original hearing in order to deal with an application for permission to appeal in the period shortly following the date when the original judgment was given, provided that the order has not been drawn up.”
On one view, Jackson J’s decision was given per incuriam, since relevant authority was not cited to him. On that view I should prefer the decision of Christopher Clarke J.
In Jackson v Marina Homes Ltd [2008] C.P. Rep. 17 the Court of Appeal (Sir Henry Brooke) had this to say:
“3 When the CPR introduced a well-nigh universal regime for permission to appeal—see CPR r.52.3(1) —the rule makers introduced a tough regime in order to avoid the progress of appeals being delayed while leave to appeal was being sought from a lower court. Recommendation 14 on p.142 of the Bowman Review of the Court of Appeal (Civil Division) (September 1997) was to the effect that:
“An application for leave to appeal should continue to be made to the court below either at the moment of decision or subsequently, provided it can be placed before the judge who made the decision against which it is sought to appeal.”
CPR r.52.3(2)(a) , however, provided more prescriptively that:
“(2) An application for permission to appeal may be made —
(a) to the lower court at the hearing at which the decision to be appealed was made.”
The practice direction to CPR Pt 52 states in para.4.6:
“An application for permission should be made orally at the hearing at which the decision to be appealed against is made.”
4 If it was not made at that hearing the judge in the lower court had no power to grant permission to appeal, and any permission he purported to grant was a nullity (see Jones v T Mobile (UK) Ltd [2003] EWCA Civ 1162 ).”
Sir Henry thus says that the rule is more prescriptive than the recommendation. The former envisaged that an application could be made to the first instance judge after the moment of decision; the latter required the application to be made at the hearing. If no application was made at the hearing, the first instance judge had no jurisdiction to give permission to appeal. In substance this is the view expressed by Christopher Clarke J, rather than that expressed by Jackson J.
In my judgment, therefore, I have no jurisdiction to grant permission to appeal.
If I had had jurisdiction I would not have granted permission to appeal because:
I do not consider that the first ground of appeal (namely that the power to recognise a receiver at common law has been abolished by the Cross Border Insolvency Regulations) has a real prospect of success;
The second and third grounds of appeal were not, so far as I recall, argued before me and it must be a question for the Court of Appeal whether that court is prepared to entertain arguments that were not deployed at first instance.