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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bank Of Credit & Commerce International SA v Hussain [2000] EWCA Civ 395 (7 December 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/395.html Cite as: [2000] EWCA Civ 395

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(Mr Justice Hart)

		Royal Courts of Justice Strand London WC2 Thursday, 7th December 2000

Thursday, 7th December 2000

1. LORD JUSTICE PETER GIBSON: This appeal was listed to float from yesterday for a two-day hearing. Yesterday the appellant gave notice that she would be asking this court to adjourn the appeal so as to await the outcome of the decision by the House of Lords in a number of cases the lead case of which is known as Etridge. With that case, as is known by those who practise in this area, have been joined a number of other cases which raise points that have come to light following the seminal decision of the House of Lords in Barclays Bank v O'Brien.
2. The decision of Hart J in the present case was founded largely on what this court decided in Etridge, though the judge acknowledged that there were some differences; but he did not regard those differences as taking the present case outside the principles enunciated in Etridge.
3. Mr Jacob for the appellant acknowledges that it is a very late application. He says, with disarming frankness, that he was not aware that Etridge was being appealed to the House of Lords, notwithstanding that permission had been given, we are told, 18 months ago for such appeal to be heard. He submits that there are two points on this appeal which may well be affected by their Lordships' decision when Etridge is heard in the House of Lords for two weeks commencing 14th May of next year. He argues that it would be unsatisfactory for this court to be deciding these points on the basis of the existing law, given that the whole matter will be under review shortly by the House of Lords.
4. His application is opposed by Mr Mitchell for the Bank. He submits that it is not necessary to await their Lordships' decision. He points out that Mr Jacob's argument will be, at least in part, that even if Etridge is right Mrs Hussain does not fall within the principle laid down in Etridge which the judge followed. But, of course, Mr Mitchell does not accept that argument. He says that there would be prejudice to the Bank if there was an adjournment. The judgment given by Hart J was for a sum of just over £250,000. In addition costs have been incurred. Mr Mitchell tells us that they amount to another £150,000, which, by the terms of the mortgage, would be added to the security. Further interest will continue to accrue on the basis that was conceded before Hart J. The interest would have increased by another £20,000 in a year's time. Further, the Bank has been permitted to withdraw a concession made below as to the applicable rate of interest on one of the two accounts on which interest continues to accrue. It would make a material difference if the applicable interest rate were the rate at which the BCCI rate was frozen, which I believe to be 11%, rather than the clearing bank rate of the National Westminster Bank, which by concession was the rate applied by the judge. The value of the property concerned, a flat in South Kensington in Queensgate, appears from letters put before us dating from December 1999 to be in the region of £450,000. As is well-known, market values in London have gone up since.
5. It is a nice decision whether or not there should be an adjournment. For my part, I think that the more sensible course would be to await their Lordships' decision. True it is that there will be costs thrown away; but Mr Jacob accepts that his client would have to pay those costs in the sense that they should be added to the security. There is also the factor that there will be some waste of the court's time which had been reserved for this court to deal with the appeal today and tomorrow.
6. It is a deplorably late application. Nevertheless, for my part, I am not satisfied that there would be any real prejudice to the Bank to grant the adjournment. It would be, in my judgment, more satisfactory for this court to determine the appeal on the basis of the pronouncements by the House of Lords on the correctness of the principles laid down in Etridge.
7. It has been suggested that we should, nevertheless, go on to deal with points which would not be dependent on the decision by the House of Lords in Etridge. For my part, whilst I am happy that we should deal with matters which can sensibly be dealt with today, I do not think it would be right to divide up this appeal into separate parts. It is by no means certain that the same constitution of this court will be hearing the appeal when it is restored after the House of Lords decide the Etridge case.
8. I would therefore not be content to accede to Mr Mitchell's submission that we should consider his cross-appeal on undue influence. But I think that it would be appropriate, if my Lady and my Lord agree with me thus far, to deal with such other procedural matters as we can before this court rises today.
9. LADY JUSTICE ARDEN: I agree. However, this application has been made extremely late. It was notified to the respondents to the appeal only yesterday afternoon, and it was listed as an appeal which was floating to come on as from yesterday. On the other hand, the lateness of the application is not, as I see it, the sole determining factor. The question is whether or not the respondents would be prejudiced if there were to be an adjournment of the appeal. The worst case is that the amount which will be due to them as at September 2000 will be the sum of £630. But, as my Lord has explained, any insufficiency in the security assumes that the value of the flat has not increased since last year, when it was last valued, and that BCCI is entitled to charge its 1991 base rates.
10. There are, as I see it, practical arguments in favour of allowing the adjournment. First, although there has been a waste of court time by reason of the fact that this application is made late, that expenditure of time which is wasted may be all the greater if the appeal is not adjourned and there has to be a further appeal following their Lordships' decision in Etridge. Second, as a practical matter it seems to me unlikely that the case can in fact be concluded until the outcome in the appeal in Etridge is known.
11. I agree with my Lord, Lord Justice Peter Gibson, that we should not hear any part of the substantive appeal today, but that we should deal with matters which can properly be dealt with today, such as what issues are truly raised by this appeal, and, in addition, that we should deal with costs.
12. SIR CHRISTOPHER STAUGHTON: I agree with both judgments. I am tempted to express a view about the notion that interest should run at 11.5% from July 1991 until today; but it would be quite wrong for me to do so.
13. Order: Appeal adjourned. The appellant must pay the costs of and occasioned by the adjournment; the costs of and occasioned by the application by the appellant in respect of the current account point. We also disallow the appellant the costs incurred by her in preparing the bundles for today. We do not make an order for the appellant to pay the costs incurred by the bank in respect of preparation of the bundle, though we say that it was reasonable for the bank's solicitors in the circumstances to prepare those bundles. We direct that the inquiry hearing date be vacated, the inquiry to await the result of the appeal. The costs will be dealt with on a security basis, but if the charge is in the event invalid, we do not say indemnity basis for the judgment but we do say indemnity basis in respect of the point on the current account.
(Order does not form part of Approved Judgment)