Hammond Suddard Solicitors v Agrichem International Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE WALLER,Lord Justice Clarke,LORD JUSTICE CLARKE |
| Judgment Date | 08 March 2002 |
| Neutral Citation | [2001] EWCA Civ 1915,[2001] EWCA Civ 2065,[2002] EWCA Civ 335,[2001] EWCA Civ 1900 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C/2001/1506{PRIVATE},2001/1610B/A1 |
| Date | 08 March 2002 |
[2001] EWCA Civ 1900
Lord Justice Pill
C/2001/1506{PRIVATE}
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)
Royal Courts of Justice
Strand
London WC2
The Applicant appeared in person
The Respondent did not appear and was not represented
This is an application for permission to appeal against the decision of Sullivan J given on 15 June 2001. I have first dealt with and refused an application for an adjournment. In doing so, I have set out the background to the present application and the history of this litigation. I will not repeat that for present purposes.
Having refused the adjournment, I invited the applicant to tell me anything he wished to about the merits of the case. Understandably he has concentrated on the question of delay. I have referred to the delay between 24 November 1997, when the IAT dismissed the applicant's appeal from a determination from a Special Adjudicator, and February 2001 when the application for judicial review was made. That is a very long delay indeed. Judicial review is a remedy which, if it is to be sought, must be sought promptly. The applicant has told me that he was let down by his solicitors. He could not find the solicitor who had appeared for him before the Immigration Appeal Tribunal, Mr Kwame Agati. He did not know what to do. He then found that the solicitor had left the country. He went to a different legal adviser who told him how to present the case himself. The applicant cannot remember why he did not appear before Sullivan J on 15 June this year. I have referred to the judgment of Sullivan J. I find the explanation for the delay no more convincing than he did.
This application has no realistic prospect of success, having regard to the delays which have occurred and, accordingly, the application for permission to appeal is refused.
I only add that on my perusal of the papers submitted by the applicant I can, in any event, see no merit in the substance of the case.
Order: Application for permission to appeal refused.
[2002] EWCA Civ 335
Lord Justice Waller and
Lord Justice Clarke
2001/1610B/A1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE SILBER)
Royal Courts of Justice
Strand
London WC2
MR. H. RANDHAWA was heard on behalf of the Claimant.
MR. E. CULLEN (instructed by Messrs. Lovells) appeared on behalf of the Defendant.
( )
Friday, 8th March 2002
In December last year the Court of Appeal, constituted by my Lord, Lord Justice Clarke, and Wall J., dealt with various applications relating to an appeal by Agrichem International Holdings Limited ("Agrichem") against a judgment of Silber J. The background and circumstances are set out in the judgment of my Lord, dated 18th December 2001, with which Wall J. agreed. It is therefore possible to summarise the position.
Silber J. had given judgment in favour of Hammond Suddards in an action concerning a dispute over fees that Hammond Suddards alleged to be due from Agrichem. Those fees were claimed in respect of proceedings taken by Agrichem, by which Agrichem sought to preserve their interest in certain olives held by a Spanish entity, CENLO, which was itself a subsidiary of an American company referred to as American Rice. In those proceedings, Agrichem failed to obtain the continuation of the preservation orders they sought, McKinnon J. delivering a judgment finding that Agrichem had no title to the olives over which preservation orders were being sought. He also found that there was a strong case that American Rice had actually paid for the olives and thus, on that basis also, that there was a very strong case that Agrichem had no right to the olives.
Silber J. found some degree of negligence against Hammond Suddards, but held that only nominal damages of £5 were due. He also made various findings of fact, including a finding that American Rice had paid for the olives, and he found that that, for example, was a separate basis upon which Agrichem were bound to fail and for which Hammond Suddards could not be held responsible. He made other findings of fact against Agrichem. Following that judgment, Agrichem submitted to a consent order to pay Hammond Suddards' fees by 31st August 2001.
Silber J. then made further orders for the payment of costs by that date and refused permission to appeal, spelling out in detail why the various findings of fact made Agrichem's prospects of success on appeal below the threshold of arguability. However, Mance L.J., recognising the hurdles that lay in Agrichem's way and having regard to the judge's findings, did grant permission to appeal to Agrichem but refused to grant any stay on the orders made by the judge. It was in those circumstances that Agrichem renewed its application for a stay orally.
At the same time, Hammond Suddards applied for security for costs of the appeal and for an order that it should be made a condition of the permission to appeal that Agrichem should pay into court, or otherwise secure, the sums that Silber J. had ordered to be paid by 31st August. It was on those applications that, by the judgment to which I have already referred of my Lord, Lord Justice Clarke, a stay was refused, security for costs was ordered and Agrichem was ordered to pay the sums due into court or to otherwise secure them. Time for compliance with that order was 1st March 2002, and the sanction was that, if there was non-compliance, Agrichem's appeal would be struck out.
In considering whether any of the above orders should be made, Lord Justice Clarke and Wall J. considered with great care and in detail the important principle as to whether the effect of the orders that were being made might stifle the appeal. It was recognised by their judgment that permission to appeal had been given. Thus it was recognised that the court was in an area similar to that in which consideration is being given as to whether summary judgment should refused but only on terms that money be paid into court. An important question if leave to defend is given on terms is whether the terms are such as to make it impossible for the defendant to comply. Similarly when considering what sums might be ordered as security for costs in an action or on appeal, an important question is whether the sum ordered would stifle the action or the appeal.
But so far as the appeal stage is concerned, it could be said that there is a difference. When a summary judgment is being considered or security for costs pre-trial, the question arises at a stage when the defendant has had no trial at all. When the same question is being considered in the appeal context, the appeal court is considering it in the context of there having been a trial—that is to say that the day in court has been had—and that is a slightly (if only slightly) different context.
In any event, the court on the last occasion directed itself as to the correct approach to what one might call the Yorke Motors principle, although the passage quoted is from the judgment of Peter Gibson L.J. in Keary Developments Ltd. v. Tarmac Construction Ltd. [1995] 3 All E.R. 534, at paragraph 28 of their judgment:
"However, the court should consider not only whether the plaintiff company can provide security out of its own resources to continue the litigation, but also whether it can raise the amount needed from its directors, shareholders or other bankers or interested persons. As all of this is likely to be peculiarly within the knowledge of the plaintiff company, it is for the plaintiff company to satisfy the court that it would be prevented by an order for security from continuing the litigation…"
Of course there Peter Gibson L.J. is considering the principle in the context of security and of a plaintiff company bringing the action. But the same principle applies in considering in the Court of Appeal whether conditions should be imposed on an appellant. The important point is that it is not just incumbent on the appellant to demonstrate that the appellant itself has no resources; it must demonstrate that it cannot raise the resources, either from its directors, shareholders, other backers or interested persons. It must do that in evidence that it can place clearly before the court.
On the last occasion the court assessed the evidence that was before it. In paragraph 10, it set out the one-page document that had been described by Ms. Marr (who swore an affidavit on that occasion on behalf of Agrichem), the one-page document described as "a balance sheet". As is hardly surprising, the court on that occasion were very unimpressed by the lack of detail in that one page and the lack of explanation as to how the position had been reached that that document sought to demonstrate as the position of Agrichem as at 11th September 2001.
The court then set out Ms. Marr's explanation for Agrichem's dire financial position in paragraph 11. That refers to the fact that American Rice had gone into Chapter 11 bankruptcy and had accepted the debt due to Agrichem but that Agrichem had only been paid 5% at that date....
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