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Bank ordered to serve Defence despite challenge to jurisdiction

13/05/16

Novo Banco SA is a Portuguese “rescue bank” created after the mid-2014 collapse of Banco Espírito Santo SA. It has been sued in London by Goldman Sachs International (“GSI”) and others, and has challenged the jurisdiction of the English Court.

In August 2015 the Commercial Court rejected the jurisdiction challenge (see news item here), but Novo Banco subsequently obtained permission to appeal.

Because of congestion in the Court of Appeal the jurisdiction appeal will not be heard until July 2016, and so in order to minimise delay the Claimants sought case management directions for a Defence and Reply to be served before the appeal, strictly without prejudice to the position on jurisdiction.

The Court of Appeal remitted to the Commercial Court the issues of (1) whether the English Court had jurisdiction to make case-management directions to take effect pending the appeal; and if so (2) whether, and how, that power should be exercised in this case.

These issues were heard by Blair J on 22 and 29 January 2016. By the time of the hearings it was common ground that the Court had jurisdiction to make such an order, but Novo Banco contended that it would be wrong in principle to do so. In light of Blair J’s indications during argument, Novo Banco conceded that it would serve a Defence in advance of the appeal but proposed to do so as a “draft”.

The parties were unable to agree on the status of a Defence served in this way: Novo Banco sought an order that it be treated as confidential and subject to the obligation under CPR 31.22, but GSI argued that it had to be given the normal status of a statement of case in order to avoid difficulties with regulatory information barriers. Blair J decided this dispute in GSI’s favour, while giving permission to Novo Banco to apply under CPR 5.4C(4) for a confidentiality order if circumstances changed.

Blair J’s judgment makes clear that, at least in some cases, it will make sense for progress to be made in the action pending a jurisdictional appeal, and gives some guidance on the exercise of Court’s jurisdiction to make case-management directions (giving appropriate protections to the party challenging jurisdiction) to that end.

The judgment appears here.

Tom Adam QC and Max Schaefer appeared for Goldman Sachs International, instructed by Bird & Bird LLP. Tim Lord QC and Max Schaefer are acting for Goldman Sachs International in the main proceedings.