Audergon v Law Baguette Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jonathan Parker,Lord Justice Tuckey,Lord Justice Pill |
| Judgment Date | 23 January 2002 |
| Neutral Citation | [2002] EWCA Civ 10 |
| Docket Number | B1 2001 0755 CHANI |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2002 |
[2002] EWCA Civ 10
Lord Justice Pill
Lord Justice Tuckey and
Lord Justice Jonathan Parker
B1 2001 0755 CHANI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION – Mr Justice Rimer
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Peter Ralls QC and Mr Stuart Hornett (instructed by Messrs Philip Ross & Co) for the Appellants
Mr Peter Crampin QC and Mr John Smart of Counsel (instructed by Alexander Mercouris of the Bar Pro Bono Unit) for the Respondent
INTRODUCTION
This appeal raises questions of general application under the Civil Procedure Rules ("the CPR"): firstly, as to the approach which an appeal court hearing an appeal from a court of first instance should adopt in considering whether to exercise the discretion conferred on it by CPR r. 52.11(1)(b) to hold a "rehearing" as opposed to a review of the decision of the lower court; and secondly, as to the approach which the court of first instance should adopt when faced with an application under paragraph 19(2) of the Practice Direction supplementing CPR Pt 51 ("the Practice Direction") to lift the automatic stay imposed by paragraph 19(1) of the Practice Direction.
The appeal is brought by the defendants in the action, namely La Baguette Ltd ("the Company"), Mrs Francesca Norton, Mr Stephen Prior, and Mr Prior's daughter-in-law Mrs Stephanie Prior, against an order made by Rimer J on 8 March 2001 whereby he allowed the appeal of the claimant Mrs Denyse Audergon (the respondent to the appeal) against an order made by Master Winegarten on 10 July 2000. Permission for this second appeal was granted by Robert Walker LJ on 28 June 2001.
It is common ground that as at 10 July 2000 (the date of the hearing before Master Winegarten) the action was stayed by virtue of the automatic stay imposed by paragraph 19(2) of the Practice Direction (the terms of which are set out in paragraph 7 below). Before the Master on that hearing were an application by Mrs Audergon for permission to amend her Particulars of Claim and a cross-application by the Company, Mrs Norton and Mrs Prior that the action be struck out on the ground that by reason of Mrs Audergon's delay in prosecuting the action it was no longer possible to have a fair trial. Neither side expressly sought the lifting of the stay, but such relief was clearly implicit in the relief sought on Mrs Audergon's application (if not also in the relief sought on the cross-application) and the hearing proceeded on that basis.
Master Winegarten concluded that since under the former Rules of the Supreme Court he would have dismissed the action for want of prosecution, the stay should not be lifted. He accordingly left the stay in place and made no order on either of the two applications before him. Mrs Audergon appealed to the High Court. On the appeal, Rimer J exercised the discretion under CPR r.52.11(1)(b) to proceed by way of rehearing. In the event, he allowed Mrs Audergon's appeal, set aside Master Winegarten's order and lifted the stay. He gave Mrs Audergon permission to amend her pleading and gave directions as to the future progress of the action. He dismissed the cross-application.
THE RELEVANT PROVISIONS OF THE CPR
It is convenient at this point to set out those provisions of the CPR which are of direct relevance to the issues which arise on this appeal.
The appeal court's discretion to proceed by way of rehearing
CPR r.52.11, which is headed "Hearing of appeals", provides as follows (so far as material for present purposes):
"52.11 – (1) Every appeal will be limited to a review of the decision of the lower court unless–
(a) ….; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing.
(2) Unless it orders otherwise, the appeal court will not receive –
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) ….
(5) …." (Emphasis supplied.)
The court's discretion under paragraph 19(2) of the Practice Direction to lift the automatic stay imposed by paragraph 19(1)
CPR Pt 51 provides for the application of transitional arrangements to proceedings issued before 26 April 1999 (defined in paragraph 1(1) of the Practice Direction as "existing proceedings"). Paragraph 19 of the Practice Direction, which is headed "Existing proceedings after one year" provides as follows (so far as material for present purposes):
"(1) If any existing proceedings have not come before a judge, at a hearing or on paper, between 26 April 1999 and 25 April 2000, those proceedings shall be stayed.
(2) Any party to those proceedings may apply for the stay to be lifted.
(3) ….
(4) …."
Neither CPR Pt 51 nor the Practice Direction contains any express guidance on the approach which the court is to adopt when faced with an application to lift the stay pursuant to paragraph 19(2) of the Practice Direction.
In the course of argument it was submitted by Mr Ralls QC (for the appellants) that an application under paragraph 19(2) of the Practice Direction is an application which falls within CPR r.3.9, which is headed "Relief from sanctions". I shall return to that submission in due course, but it is convenient at this point to set out the material part of CPR r.3.9, which reads as follows:
"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions and court orders and any relevant pre-action protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
(2) …."
The above rules fall to be applied against the background, and in the context, of the "overriding objective" identified in CPR r.1.1, which provides as follows:
"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as practical –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) as to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues;
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
FACTUAL AND PROCEDURAL BACKGROUND
Mrs Audergon is a Swiss national. She is married to Mr Michel Audergon. Mrs Norton is Mr Audergon's daughter by a previous marriage. Mr Prior is a friend of Mrs Norton. As already mentioned, Mrs Prior is Mr Prior's daughter-in-law.
In about 1970 Mr Audergon, who had experience in the catering trade, bought premises at 13–15 Selsdon Rd, Croydon ("the Property"), in which he ran a wine bar known as "Le Refuge". In about 1990 Mrs Audergon began running a tapas bar in neighbouring premises at 32 Selsdon Rd. She claims that in early 1992 she acquired the wine bar business from Mr Audergon, and that at about the same time he granted her a 12-year lease of the Property. These claims are disputed by the appellants. In particular, they contend that the purported lease is a forgery designed to support what they say is a trumped up case by Mrs Audergon. In his judgment, Rimer J commented that a number of evidential matters to which he had been referred gave rise, at least at first sight, to a strong inference that the alleged lease did not exist at the time Mrs Audergon claims it existed; but he concluded that that issue could only be resolved at a trial.
The Company was bought off the shelf by Mr Audergon in about September 1992. Initially, it appears that Mrs Audergon was its sole director. Of the two subscriber's shares, one was registered in the name of Mrs Norton, who was also the Secretary of the Company. Mrs Audergon contends that the other subscriber's share was registered in her name, but the appellants deny this (although they accept that Mr Audergon probably intended that the respondent should become a member of the Company). The appellants say that Mr Audergon granted a lease of the Property to the Company.
Mrs Audergon further claims that pursuant to an arrangement made orally between her and Mrs Norton in late 1992 Mrs Norton agreed to hold the one subscriber's share registered in her (Mrs Norton's) name as nominee for Mrs Audergon, with the consequence that Mrs Audergon thereupon became the beneficial owner of the Company. This too is denied by the appellants.
The appellants say that the original plan was that the Company should operate in the catering trade, in which Mrs Norton also had some experience,...
To continue reading
Request your trial
-
PT Ventures, SGPS, S.A. v Vidatel Ltd
...when the party can demonstrate that the form of the order can be attributed to a miscarriage of justice: Taylor v. Lawrence [2002] EWCA Civ. 10, [2003] QB 528 at [55]. The Board would endorse the test which was formulated in Re Uddin [2005] I WLR 2398, at [4], and applied by the Court of ......
-
Pt Ventures, Sgps, S.A. v Vidatel Ltd
...when the party can demonstrate that the form of the order can be attributed to a miscarriage of justice: Taylor v. Lawrence [2002] EWCA Civ. 10, [2003] QB 528 at [55]. The Board would endorse the test which was formulated in Re Uddin [2005] I WLR 2398, at [4], and applied by the Court of ......
-
H.L. v. Can. (A.G.), (2005) 262 Sask.R. 1 (SCC)
...Taylor v. University of Saskatchewan (1955), 15 W.W.R.(N.S.) 459 (Sask. C.A.), refd to. [para. 207]. Audergon v. La Baguette Ltd., [2002] E.W.C.A. Civ. 10, refd to. [para. Gray v. Turnbull (1870), L.R. 2 Sc. & Div. 53 (H.L.), refd to. [para. 213]. Bigsby v. Dickinson (1876), 4 Ch. D. 24......
-
H.L. v. Can. (A.G.), (2005) 333 N.R. 1 (SCC)
...Taylor v. University of Saskatchewan (1955), 15 W.W.R.(N.S.) 459 (Sask. C.A.), refd to. [para. 207]. Audergon v. La Baguette Ltd., [2002] E.W.C.A. Civ. 10, refd to. [para. Gray v. Turnbull (1870), L.R. 2 Sc. & Div. 53 (H.L.), refd to. [para. 213]. Bigsby v. Dickinson (1876), 4 Ch. D. 24......