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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 >> Base Metal Trading Ltd v Shamurin [2002] EWCA Civ 40 (18 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/40.html Cite as: [2002] EWCA Civ 40

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Friday, 18th January 2002

1. LORD JUSTICE CLARKE: This is a renewed application by the defendant for permission to appeal against an order of Mr Justice Aikens dated 9th October refusing to order a trial of a preliminary issue. The order refused an application which simply stated that the issues raised by a Part 24 application be determined as preliminary issues.
2. The ground of the defendant's Part 24 application was that all the claims made by the claimant against the defendant in this action are to be determined in accordance with Russian law and that the limitation period prescribed by Russian law had expired before the proceedings were issued or alternatively that Russian law does not give any remedy and, in either event, that judgment should be given in the defendant's favour now, dismissing the action against him. It thus appears that although the issue is not by any means clearly formulated, in essence, the proposed preliminary issue was whether the claims in the action or any of them were governed by Russian law. As I understand it, it is common ground that to the extent that they are governed by Russian law, the claims will fail. That is the only preliminary which the defendant was seeking and the effect of the judge's order, as I read it, is that he refused to order that preliminary issue. He did not however consider whether there were other preliminary issues which it might be sensible to try before the trial of the action as a whole.
3. Subsequent to the decision of Mr Justice Aikens, the Part 24 application came before Mr Justice Moore-Bick. He refused the application substantially on the ground that the Russian law issues raised matters which depended, or at least might depend, upon oral evidence. It is at least possible, if not likely, that the Russian law issues or some of them will depend upon the credibility of the two principal protagonists, who are Mr Shamurin, the defendant, and Mr Yuri Zhivilo, on behalf of the claimant.
4. The basis upon which the judge refused the application for a preliminary issue was that he accepted Mr Broadbent's submission on behalf of the claimant which counsel expressed at page 16 of the transcript. He said:

" ..... where you do have issues of credibility of this nature, where Mr Shamurin is accusing Mr Zhivilo of lying, we submit that it would not be fair for Mr Shamurin's credibility on the question of whether there was an implied agreement simply to be assessed in isolation from the broader issue which goes to the merits of the case as a whole."

5. The implied agreement question arises in relation to the Russian law issues. It is, I think, plain that there are important issues of credibility both in relation to that question and in relation to some of the issues which arise or would arise in relation to the merits of the case as a whole. In particular, there is an issue as to whether Mr Zhivilo authorised the trading which the defendant carried out and about which complaint is made. As I read his judgment, the judge essentially accepted Mr Broadbent's submission and decided that in those circumstances it would not be just to order the preliminary issue sought.
6. Mr Briggs submits that he was wrong to do so, having regard to the overriding objective in the CPR and having regard to these particular factors. He submits that the Russian law issues could be determined in the near future, that they would take only some three or four days to try, that if the defendant's evidence is accepted they will be decisive either of the whole case or of parts of the case and that in these circumstances a preliminary issue would save time, including court time, and expense and is the only sensible proportionate way of resolving the issues in the action. He submits that in these circumstances the judge was wrong to refuse the application since the effect of his refusal was that the matter was put into the general Commercial Court List with the likely result of a trial of some 15 days.
7. It is common ground that this court could only interfere with that decision, being the exercise of a discretion, if the judge exceeded the generous ambit of reasonable disagreement. There is undoubted force in Mr Briggs' submission that it would be desirable to determine particular issues if that can be done shortly and without injustice to either side. However I have reached the clear conclusion that there is no realistic basis on which this court would interfere with the decision of Mr Justice Aikens, essentially, for these reasons.
8. As I see it, he was not saying that all the issues in the action must be tried at one time. He simply accepted Mr Broadbent's submission that the issues of credibility should not be divided in the way that was, or was potentially, involved in the defendant's submission. The discussion before us this morning has shown that there is likely to be an overlap between the Russian law issues and the more general merits issues. Mr Briggs has drawn our attention to the fact that one of the Russian law issues is where the alleged tort or torts was or were committed. The defendant says that they were committed in Russia so that it would be necessary to show that there was liability under Russian law and that the claimant cannot show liability under Russian law. The claimant's case is that the torts were not committed in Russia. Mr Briggs recognises - as far as I can see, entirely correctly - that that issue will involve a consideration of the facts including the communications between the parties in relation to the alleged torts, at any rate in general terms.
9. It thus appears to me that there is indeed some overlap between these issues and that the right course, in terms of case management, is this. As I understand it, the effect of the order made by Mr Justice Moore-Bick when he refused the Part 24 application was that the defendant must serve an amended defence on or before 25th January. It will then be for the claimant to reply to that defence which will no doubt contain particulars of the alleged negligence. A case management conference has, we understand, been fixed for some time in March. It appears to me that the sensible way forward would be for the parties to consider the issues defined by the pleadings when they are complete and to consider whether there are some issues which it would be sensible to determine before other issues. It seems to me to be not unlikely that there are some issues which depend upon the credibility of the two principal witnesses and which can sensibly be determined without the necessity of determining every issue in the case. There may be many other issues as to allegedly negligent trading which depend on entirely different considerations and which can sensibly be tried separately. It appears to me that that is the sensible way forward in case management terms. It takes account of the various considerations identified by Mr Briggs, in which I recognise there is considerable force, but leaves intact the order which Mr Justice Aikens made, which simply orders that the Russian law issues should not be tried in isolation.
10. In all the circumstances, essentially, for these reasons, I have reached the conclusion that there is no realistic basis on which this court would interfere with Mr Justice Aikens' case management decision. In the interests of justice, the overriding objective and the interests of the parties would be best served by taking the course I have, in very broad terms, outlined. For these reasons, I would dismiss the application.
11. LADY JUSTICE HALE: I agree. I see no real prospect of the Court of Appeal overturning the exercise of the judge's discretion on the narrow point he did decide. But it does not follow from that that there will have to be a full trial of every issue in the case at the same time. There are very wide powers of case management under the CPR and this allows any court to deal flexibly with any type of case. A judge can, if he thinks fit, order sequential trials of factual issues, and it is a common experience in the Family Division that the issues will be parcelled up to be determined sequentially by the same judge. This means the judge can retain control throughout and re-evaluate any of those decisions if need be. At the same time the judge can decide what evidence or disclosure to order at any particular time in order to comply with the timetable for determining the issues he has set.
12. I am in full agreement with my Lord, Lord Justice Clarke, that the sensible course is for there to be consideration of how this claim might be most efficiently parcelled up with the interests of justice and a proper use of everyone's resources in mind and a full case management conference to determine how it should proceed from now on.
Order: Application dismissed with the costs subject to detailed assessment.