England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Hart)

		Royal Courts of Justice Strand London WC2 Wednesday 6th February, 2002

1. LORD JUSTICE ALDOUS: I invite Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is an application under the slip rule to amend an order made by this court sealed on 23rd May 2001 after judgment delivered in the appeal on 18th May 2001. For the full facts of the case I refer to the judgments then delivered.
3. In barest summary the case concerned a share option agreement. Mr Gloyne, the claimant, asserted that he was entitled to recover some US$97,879 which he had paid in satisfaction of option rights purportedly enjoyed by Mr Richardson. The appellant in the proceedings and the applicant for the slip rule amendment today was Mrs Richardson, his widow and executrix.
4. The proceedings had been commenced by the issue of an originating summons by Mr Gloyne seeking declaratory relief. The declarations sought at paragraph 2(6) of the amended originating summons was in these terms:

"that the Defendant [that is Mrs Richardson] is bound to return to the Plaintiff the sum of US $97,879 (alternatively £62,944.69) and interest on it as money had and received, the same having been paid on or about 21st August 1996 under a mistake of fact or law."

5. I should make it clear at once that the whole scope of the debate in the litigation on appeal before us was the correct construction of the relevant agreements. In a short judgment given on 23rd October 2001, upon an application made by Mr Gloyne on his part for an amendment of the order of May 2001 under the slip rule, I said this:

"8. In Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414 my Lord, Lord Justice Aldous, said this at paragraph 25 of the judgment referring to earlier authority:

`Those cases establish that the slip rule cannot enable a court to have second or additional thoughts.'

9. That observation, with respect, seems to me also to embrace the proposition that the court cannot embark upon substantive judicial consideration of issues that have not previously been canvassed. It is right that there is authority to show that the slip rule may be deployed in circumstances where counsel has omitted to draw to the court's attention some aspect of the case which requires a further order, and such further order may be added in by the slip rule. But only, as it seems to me, where the matter is in reality in uncontentious."

6. I would wish for my part to emphasise those observations in the context of the application made before us today.
7. The order which we made in May 2001 granted a declaration at paragraph 3(iii) in these terms:

"that the Appellant is bound to return to the Claimant the sum of US $97,879 and interest on it from 21st August 1996 at the rate of 8% per annum, save that interest from the 24th January 2001 shall be at the rate of 13% per annum."

8. It will be seen that that declaration made no reference to an alternative sum in sterling.
9. Then at paragraph 4 of the order this was provided:

"that the Appellant do pay:

(i) to the 1st Respondent the costs of the appeal and cross appeal and of the application to admit new evidence on the appeal, all such costs to be assessed on the standard basis if not agreed; and

(ii) to the 2nd Respondent one third of its costs of the appeal and all of its costs of the application to admit new evidence on the appeal, such costs to be assessed on the standard basis if not agreed."

10. The amendments which Mrs Richardson seeks are as follows. First, to add the words "alternatively £62,944.69" after "US$97,879" in paragraph 3(iii) of the order, and in paragraph 4 instead of "the Appellant do pay" it should read "the Appellant as executrix to the estate of Anthony Frederick Richardson deceased do pay".
11. I turn to the first of these applications relating to the sterling sum of £62,000-odd. Mrs Richardson says that the originating summons sought relief in alternative currencies and the option agreement permitted the parties to make dollar payments in sterling. Mr Gloyne says that he was originally asked to pay in US dollars and did so, and he elected in these proceedings for reimbursement in dollars. His claim is in restitution and he would not get restitution if payment in sterling meant that he got fewer dollars than he had paid out.
12. I wish to make it clear that the issue of the currency of payment was never argued before us, for the good reason that it was no part of the matters in hand in the appeal with which we were concerned. I have already said that the length of that appeal was entirely taken up with questions of the contract's construction. I venture to say that my judgment on the substantive appeal shows that this court was in effect indifferent to the question of currency of payment.
13. Counsel today have reminded us of leading authorities in their Lordships' House in which issues relating to judgments to be made in foreign currencies were addressed and canvassed. As is well-known, the early leading cases are Miliangos v George Frank (Textiles) Ltd [1976] AC 442 and then The Despina [1979] AC 685.
14. Mr Walford, for Mr Gloyne, deploying these authorities - and I will not, with respect, set out the text to which we were referred - asserts that on the law as there established, given his points as to restitution and on the facts of the case, he is entitled to be paid in dollars. He also, as I have already said, submits that he has elected to take dollars. He did so before Hart J and in his respondent's notice in this court. I make it clear that it may be that the arguments which he would seek to deploy are very powerful.
15. At the same time Mr Ashton has certain arguments the other way. He referred us to paragraph 8 of the first relevant contract, which is in these terms:

"Payments expressed to be made in US dollars may be made in sterling in each case calculated at the mid-point of the spot dollar/sterling rate of exchange published in the Financial Times for the business day immediately preceding the date of this Agreement."

16. Mr Walford submits that that is not a provision upon which Mrs Richardson is entitled to rely and he is ready to expand upon that proposition. In short, there are arguments both ways as to the currency of payment. One possibility is that Mrs Richardson may pay in sterling but the exchange rate is to be struck at the time of payment. There is authority in the case of Miliangos (pages 485F-G and 466B-C) which Mr Walford says strongly supports that view.
17. The fact is that this issue has never been argued in any court. I have already said that it was not argued before us and why it was not. It seems to me that we should take whatever step is necessary to ensure that all these matters are open for further argument. As it happens, Mr Gloyne has issued fresh proceedings against Mrs Richardson seeking a money judgment based upon the declaration given in this court. I would propose to accede to the application to amend the declaration under the slip rule so as to add the words "alternatively £62,944.69", but I desire to make it crystal clear that all the points raised or to be raised upon either side relating to the argument as to currency of payment are to be treated as live and in contest in the current first instance proceedings. It seems to me that in that way justice can properly be done; both parties will have an opportunity in the correct forum to advance their respective arguments.
18. I turn briefly to the amendment sought to paragraph 4 of the order of May 2001, the addition of the words "as executrix". It seems (or at any rate it is asserted, I make no finding) that there is nothing left in Mr Richardson's estate which would satisfy either the principal sum due or the costs, and Mrs Richardson is the 100% beneficiary of her husband's estate. So if her liability to pay the costs is only in her capacity as executrix there is a risk that Mr Gloyne, entitled to his costs as he is, will get nothing.
19. The truth is that these proceedings were launched (as their title shows) against Mrs Richardson as executrix. The judgment given by us in May was given against her as executrix. It seems to me therefore that her liability to pay costs under paragraph 4 of the order is a liability arising in her capacity as executrix. If, as may well be the case, Mr Gloyne seeks to fix her with an individual personal liability for these costs on some such basis as, for example, that she has wrongly dealt with the assets of the estate or maladministered the estate, then it is open to him to do so in the fresh proceedings to which I have already referred. The order we made in May 2001 does not preclude that possibility. I merely say that as matters stand the order was made against her as executrix. The amendment sought by Mr Ashton to add express words referring to her status as executrix is in my judgment unnecessary.
20. LORD JUSTICE ALDOUS: I agree.
ORDER: Order made on 23rd May 2001 amended under the slip rule so that the declaration includes "(alternatively £62,944.66)" to be added before the words "and interest" in paragraph 3(iii) of that order; no order for costs. (Order not part of approved judgment)