Pourghazi v Kamyab
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 13 May 2015 |
| Neutral Citation | [2015] EWCA Civ 562 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 May 2015 |
| Docket Number | Case No: A3/2014/3392 |
[2015] EWCA Civ 562
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MARTIN MANN QC sitting as a Deputy Judge of the High Court)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Sales
Case No: A3/2014/3392
Mr T Braithwaite (instructed by Direct Access) appeared on behalf of the Appellant
Mr P Harty (instructed by Neumans) appeared on behalf of the Respondent
Approved Judgment
This is an application made to this court by the respondent to invite it to exercise its jurisdiction under CPR Part 52.9 to impose a condition upon which an extant appeal for which permission has been granted may continue to a full hearing. The condition which the respondent seeks to have imposed as a condition for the appeal to proceed is that the appellant should pay the respondent sums which he has been ordered by the court to pay by orders which are not the subject of the appeal which is on foot.
CPR Part 52 .9 provides:
"(1) The appeal court may –
(a) strike out the whole or part of an appeal notice;
(b) set aside permission to appeal in whole or in part;
(c) impose or vary conditions upon which an appeal may be brought.
(2) The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.
[…]"
The background to the application, put shortly, is this. The appellant and respondent were involved in an arrangement whereby the respondent lent monies to the appellant for the purposes of property development. The respondent claimed that there came a point in the working out of the arrangements where fraudulent misrepresentations were made by the appellant to the respondent, causing him loss. The matter came on for trial before Mr Martin Mann QC, sitting as a deputy judge of the Chancery Division. By a judgment dated 31 July 2014, the judge found that the respondent's allegations of fraudulent misrepresentation had been made out and gave judgment for the respondent. The judgment was for sums which now come to about £900,000 plus an interest element determined at a contractual rate of some £500,000. The judge also ordered costs to be paid on the indemnity basis.
The appellant sought permission to appeal, not in relation to the basic findings of the judge in relation to fraudulent misrepresentation nor in relation to the costs order made, but in respect of the interest element reflected in the order made pursuant to the judgment. By an order made in December 2014 Sir Timothy Lloyd granted permission to appeal in relation to that interest element of the order made against the appellant. The other financial orders made against the appellant, amounting at present in total to about £900,000, are not the subject of appeal, and the appellant has no answer to the obligation which is upon him as a result of the court's order to make immediate payment of that sum.
The respondent has been seeking to pursue its enforcement options against the appellant in respect of the £900,000 debt which is due and is not the subject of the appeal. In the course of what it has done to try to enforce that unappealed part of the judgment below, the respondent maintains that the appellant has been seeking to obfuscate and has been less that straightforward in the various responses and answers that he has given in the course of those enforcement proceedings. The respondent also maintains that the appellant has made unjustified applications to court in an effort to disrupt and hold up the enforcement process. The particular matter complained of in that regard was an application made by the appellant to Newey J without notice for injunctive relief to prevent enforcement agents seeking to execute the judgment, in relation to which the appellant gave undertakings to the court in respect of providing information to the respondent. Eventually the matter came back before the court. The appellant had failed to comply in significant respects with those undertakings and did not at the return stage seek to uphold the order which had been obtained. The court discharged the order and awarded indemnity costs against the appellant. I will come in a moment to consider the other complaints which are made by the respondent in relation to obfuscation and lack of cooperation by the appellant with the enforcement process.
The relevant principles for me to apply on this application were common ground. The leading authority is Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065. The relevant guidance appears in the judgment at paragraphs [36] to [46]. The first question which the court has to ask is whether there is a compelling reason for exercising the court's powers under CPR Rule 52.9. If the court identifies that there is a compelling reason (as to which key factors were identified and discussed by the court at paragraph [41]), the court has to consider whether it should exercise its discretion to make the order sought (see paragraph [43]). Of course, if the court has identified that there is a compelling reason to make an order, usually it will follow that it should exercise its discretion to make such an order. At paragraph [46] the court referred to an earlier authority which was argued to be perhaps more adverse to an applicant seeking such an order, but made the point that the authority referred to was not inconsistent with the approach that the court laid down as the proper approach (see paragraphs [46]–[49] of the judgment).
Since the judgment of the Court of Appeal in the Hammond Suddard case there has been an amendment to the overriding objective in CPR Part 1. Rule 1.1(2) provides that the overriding objective includes dealing with a case justly and at proportionate cost, which is to include so far as is practicable taking account of a range of matters, including now a new sub-paragraph (f): "enforcing compliance with rules, practice directions and orders". The approach laid down in Hammond Suddard is thus to be applied having regard to the addition of this as a factor to be taken into account in deciding whether it would be in accordance with the overriding objective to make an order such as is sought in the present case (compare paragraph [43] of the judgment).
The respondent seeks an order to require the appellant to pay to him the sums which the courts have determined are due from the appellant to the respondent as reflected in the part of the orders made which are not subject to appeal (in the sum of about £900,000), as a condition for being able to pursue the appeal in relation to the interest element of about £500,000. It is common ground that it is not a sufficient basis for the making of an order to impose such a condition simply because it would be convenient for the respondent to use that as a method of execution of the unappealed orders in his favour. Some additional good reason must shown to justify the exercise of the court's power under CPR Part 52.9.
In Gold Harp Properties Ltd v MacLeod [2014] EWCA Civ 532, Rimer LJ, speaking for the court, said this at paragraph [29]:
"Mr Bowker submits that there is a compelling reason for imposing the condition because, at the moment, the defendants are not facing any consequences as a result of their failure to comply with the orders of the court. That I fully understand and accept, but the proposition appears to amount to no more than that a defendant who wishes to appeal and indeed obtains permission to appeal, but who has not complied with a judgment of the court below and has obtained no stay of execution of it, must as a matter of course be required to comply with and satisfy that judgment as a condition of being permitted to pursue an appeal. As it seems to me, there would be a good deal to be said for such a principle. But, in my judgment, that is simply not the law."
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Seamas Daly v Thomas Gerrard Ryan
...may also be imposed on an individual person resident within the jurisdiction, if a compelling reason is shown ( Pourghazi v. Kamyab [2015] EWCA Civ 562). 15 Pursuant to his duty to the court to refer to any matters of fact or law on which Ryan would have relied, if they had had the benefit......