Michael Wilson & Partners Ltd v Sinclair and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison |
| Judgment Date | 09 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1732 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 2013 |
| Docket Number | A3/2012/2616 |
[2013] EWCA Civ 1732
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lewison
A3/2012/2616
Mr C Samek, QC (instructed by Healys LLP) appeared on behalf of the Appellant
Mr P Shepherd, QC andMr M Fealy (instructed by Kerman & Co) appeared on behalf of the Respondent
. Lord Justice Lewison This is an application for me to reconsider an order which I made on 16 July 2013 refusing to lift a stay which had come into operation under the terms of an order made by Rix LJ. Teare J had given permission to appeal, but an application was made for security of costs and other matters. That came before Rix LJ on 16 January 2013. In paragraphs 4 and 5 of his short judgment, Rix LJ said this:
"So on the question of a stay, I will grant a stay, but only on the condition that the sums of £125,000 and £25,000 to which I have referred are paid into Court. The offer was to pay them into Court immediately. Mr Atkins [I interpose then appearing for MWP] then said something about 14 days, but the promise in the skeleton argument was to make immediate payment and I thought that was the right solution and that is what I will require. Immediate means immediate. That is to say, as soon as what I assume will be an international transfer can be made, which I do not think takes very long these days, and until it is made, the appeal is stayed.
Mr Fealy submits that I should order a sanction on the dismissal of the appeal unless the monies are paid within a certain shortish length of time. I will not say that. I will require immediate payment or a stay. Any payment of that beyond an immediate payment will require the stay to be undone. If Mr Fealy has concern that MWP want nothing more than for the appeal to go off into the long grass, on which he has not given an explanation, then that is a matter that would have to be addressed in the future were there to be a breach of my order."
There was then some disagreement between counsel about the timing and the consequences of failing to pay on time. MWP wanted the appeal to be stayed until the time that the monies werepaid. Rix LJ refused to do that and did give liberty to apply. In an e-mail from his clerk sent on 21 January 2013, Rix LJ passed on the message that:
"MWP is likely to find itself in grave difficulties if, by missing any of the deadlines, it loses a stay of execution or suffers a stay on its appeal."
Mr Samek, QC points out that Rix LJ had refused to make a unless order. That is true, but he warned in no uncertain terms what the consequences would be if the deadlines in his order were missed. What, in fact, happened was that no money was paid until May, some five months later. There has been a dispute about whether the payment, in fact, made was prompted by an application to strike out the appeal. I will assume that it was not.
Nonetheless, there is, as Mr Samek accepts, no evidence of any attempt either to pay the money or raise money to pay into Court before May. The best explanation...
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- Michael Wilson & Partners, Ltd (Claimant/ Appellant) v Thomas Ian Sinclair and Others John Forster Emmott (Part 20 Defendant)
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...Civ 1537, [2013] 6 Costs LR 1008, on the effect of the new CPR 3.9, has rightly been described as a "game changer": see Michael Wilson & Partners Ltd v Sinclair [2013] EWCA Civ 1732, per Lewison LJ. It is important for litigants to understand, however, how the rules of the game have been ......
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...order which is a ground for striking out a claim under CPR rule 3.4(2)(c). 22 I am referred to the decision in the case of Michael Wilson & Partners v Sinclair [2013] EWCA Civ 1732 before Lewison LJ, which is analogous in that the appellant had been ordered to pay £150,000 in costs by the j......
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Brushmoor UK Ltd v BP Raffinaderij Rotterdam BV
...order which is a ground for striking out a claim under CPR rule 3.4(2)(c). 22 I am referred to the decision in the case of Michael Wilson & Partners v Sinclair [2013] EWCA Civ 1732 before Lewison LJ, which is analogous in that the appellant had been ordered to pay £150,000 in costs by the j......