Timothy Firmstone (Plaintiff/Applicant) v Sky Ride International Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH,LORD JUSTICE MUMMERY |
| Judgment Date | 21 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0521-18 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | SLJ 98/5322/2 |
| Date | 21 May 1998 |
[1998] EWCA Civ J0521-18
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEYMOUTH COUNTY COURT
(MR RECORDER MOAT)
Royal Courts of Justice
Strand
London WC2A 21L
Lord Justice Roch
Lord Justice Mummery
SLJ 98/5322/2
MR R BOLTON (Instructed by Messrs Jacobs & Reeves, Dorset BH15 1AU) appeared on behalf of the Applicant.
MR G M JONES (Instructed by Messrs Frasers, Cambs, PE13 1ND) appeared on behalf of the Respondent.
I will ask Lord Justice Mummery to give the first judgment.
Sky Ride International Limited are the makers of parascending winchboats. In August 1992 Mr Firmstone entered into a hire purchase agreement for a winchboat with Sky Ride at a total cash price of £34,427.50. He paid £10,000 and paid five further instalments of £1,596.26. He failed to keep up the payments and Sky Ride repossessed the boat. Mr Firmstone alleged that there were defects with the boat and that there had been misrepresentations.
In May 1994 Mr Firmstone started proceedings in the Weymouth County Court for rescission of the agreement, for repayment of the sums he had paid and for damages. Sky Ride defended the claim. They counterclaimed for damages. The case was heard by Mr Recorder Moat over a period of 17 days at various times between 1 October 1996 and 7 October 1997. He reserved judgment. At the end of November 1997 the parties received the draft judgment dated 24 November 1997. It was 70 pages long. The Recorder found in favour of the plaintiff. By an order drawn up on 13 January 1998 judgment was given for Mr Firmstone for £8,502.38. The Recorder dismissed the counterclaim. An order was made for the legal aid taxation of Mr Firmstone's costs. He had been told Mr Firmstone was legally aided with a nil contribution. The liability for costs was not dealt with at that date.
There was a subsequent hearing on 5 May 1998 before Mr Recorder Moat when he made an order that the defendants pay the plaintiff's costs on county court scale 2, to be taxed if not agreed. The estimated costs of the plaintiffs, inclusive of VAT, amount to £60,000.
This application has arisen out of an order made by Otton LJ on an ex parte paper application for leave to appeal and for a stay of execution. That order was dated 2 April 1998. Otton LJ granted leave to appeal, and directed that the time for serving the notice of appeal be extended until the expiration of 10 days from the date of the seal on his order. The order was sealed on 28 April 1998.
The present dispute between the parties has arisen out of a further order Otton LJ made, to this effect:
"AND IT IS FURTHER ORDERED THAT the application for a stay of execution pending the determination of the appeal be granted subject to liberty to any party to renew the application for a stay or to apply to discharge the stay as the case may be within 7 days of receiving notice of this order."
The order made by Otton LJ also stated trenchant reasons for granting leave to appeal. He made the order for a stay on an express request in the ex parte application dated 13 February 1998. That application was supported by an affidavit sworn by the solicitor for the defendants. That affidavit dealt with a number of matters explaining why the application was out of time, and why the leave to appeal was sought. There was an account of the background to the proceedings.
The only parts of the affidavit relevant to the stay of execution application were, firstly, paragraph 14 which simply said:
"I also respectfully ask that execution be stayed pending the hearing of the appeal if it is considered appropriate to deal at this juncture, because of the problems it would cause the defendant's business."
No details of that were given. Nothing was mentioned in the affidavit about the impecuniosity of the plaintiff or any difficulties there might be recovering damages from him, if they were paid by the defendants pursuant to the judgment.
Two other paragraphs of the affidavit are relevant, because they give rise to concern about the way in which this application came before Otton LJ. Paragraphs 6 and 7 read as follows:
"6. Having learned of the said Order [the order made by the Recorder on 8 January 1998] from the Plaintiff's Solicitors I sent by fax on the same day, 15th January 1998, an application for execution to be stayed pending appeal. A copy of the Notice of Application and supporting Affidavit are together now produced to me marked CJC3. "
The application was for a stay of execution. The application was to be made to Mr Recorder Moat in the county court. All the affidavit stated relevant to a stay of execution in support of the county court application, was this (paragraph 4):
"In the event that any execution is issued, it would be damaging to the Defendants because it would severely interrupt its business and render it unable properly to continue its activities to the prejudice of its staff and customers in the event of the appeal being successful."
The affidavit sworn in the Court of Appeal states:
"Hearing was estimated at half a day because it was understood that the Plaintiffs would apply for costs at...
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