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 Lloyd)

		Royal Courts of Justice Strand London WC2 Tuesday 22nd January, 2002

1. LORD JUSTICE ALDOUS: The applicants, Doctors Moore, Poskitt and Agbaje, seek permission to appeal against the order of Lloyd J of 3rd December 2001.
2. The proceedings arise out of a partnership dispute between doctors. The applicants and the respondent to the appeal, Dr Sahota, worked in a medical practice at Franklin's Way in Wickford, Essex. They fell out with the result that the partnership could not continue. There is a dispute as to who in fact were equity partners at the time, but I will assume for the purposes of this judgment that they were all in partnership.
3. Thereafter Dr Sahota started proceedings seeking relief, including an account and an inquiry. The relevant accounts and inquiries were ordered by Master Dyson in October 1995 and August 1996. The account was taken by Master Bowles who, in a judgment dated 9th October 2001, ordered the applicants to pay to the respondents just over £52,000 together with interest which he set at 8% from 1st May 1994. The result was that the sum owing was about £83,000. He ordered the money to be paid in instalments. Against that order the applicants have appealed.
4. On 2nd November the applicants applied to Hart J for a stay of the order. He stayed the order upon conditions. He said this:

"Bearing in mind that in practical terms the first payment due under the order is due on 20th November, (although strictly speaking the paragraph 1 payments are due now it is for some reason the payment due on 20th November which has excited this application)i It seems to me the appropriate order to make is that there should be a stay of the execution of the order pending the hearing of the application for permission to appeal but that so far as any period of stay after 20th November this year is concerned that stay should be conditional upon the payment into court by the Appellants of the sums due under both paragraphs 1 and 3 of the order, that is to say the sum of £83,227.47 and £20,000 under paragraph 3.

It will therefore be very much in the Appellants' interests to seek to bring on their appeal at the earliest possible opportunity. I will not make any specific direction for expedition."

5. Thereupon the applicants sought an early date from the listing clerk. They were thwarted in their attempts to get it on before 20th November and were given the date of 14th January. They then applied on 3rd December to Lloyd J for a variation of the order of Hart J. He refused to vary the order. Having set out the factual background, he said this at page 3 of the transcript at F:

"In those circumstances, the defendants seek a variation of Hart J's order to continue the stay unconditionally over until the determination of the application for permission and the appeal if the application is successful. Mr Ogunbiyi makes the point that, whereas the basis for his application originally was that if the money was paid over to the claimant but the appeal was successful the defendants might never see that money again, that problem is overcome by the provision for payment into court. But he makes the point that the claimant is not really at risk of not being able to recover the judgment if the judgment stands, notwithstanding the application, because the money is represented by assets which are plant and equipment of the practice, which is not just going to disappear. He says that it would be harsh and unreasonable for the defendants to be forced to raise money to pay into court because they might have to sell the plant which is there for the treatment of patients.

So far as the last point is concerned, it seems to me that would have been a reason for objecting to Hart J's original order. That has not been the subject of any application for permission to appeal itself, as in theory it could have been, and it would now be too late. What Mr Ogunbiyi has said essentially to me is that Hart J's order was wrong. He says that there is a change of circumstances in that it is now clear that the appeal cannot be brought on within the time before the money had to be paid. But that is something which was plainly anticipated as a possibility, and perhaps a very likely possibility, on 2nd November.

Accordingly, it seems to me that it is not a valid reason now for varying Hart J's order and that is why, in my judgment, Mr Ogunbiyi's real point is that the learned judge was wrong when he made this order. That is a submission which can only be made by way of appeal. Accordingly, I propose to dismiss this application."

6. Against that order of Lloyd J refusing to vary the order of Hart J, the applicants sought permission from this court to appeal together with an order for a stay pending hearing of the appeal. That application was referred to me and I considered it on the papers that had been placed before the court. I could not find any evidence which would justify any stay of the order. In particular I could find no evidence as to the financial position of the applicants. I gave as my reasons for refusing permission:

"I have not found any evidence in the bundle put before me other than the statements of truth on pages 11, 17 and 79. They do not provide a sufficient basis for an appeal to stand a real chance of success. It may be that there are grounds for a stay, but I cannot find them in the bundle. Where is the order of 2nd November 2001 made by Hart J?"

7. Mr Ogunbiyi arrived before me today in the same position. The bundle that I have before me contains no evidence that these applicants would suffer any hardship by having to pay the money into court or into a solicitor's account. The position has however changed, in that it was anticipated that the hearing would take place on 14th January, but for reasons in the Listing Office that was not possible. It therefore was due to take place in March, but an application was made for expedition and the appeal is set down to be heard on 18th February.
8. Despite the lack of evidence - which I consider to be absolutely deplorable, having regard to the fact that I drew the lawyers advising these applicants to the deficit - I have come to the conclusion that this is a case where it would be appropriate to grant a stay of the execution of the order and to grant permission to appeal. The stay will last until determination of the appeal which is due to start on 18th February 2002.
9. My reasons are this. I have been told on instructions by Mr Ogunbiyi that the two doctors who are in this country, Dr Poskitt and Dr Moore, do not have the money to pay the sums ordered. They do have houses, but there is not sufficient equity to even make a large payment. They also do not have any other assets with which to satisfy this sum. In my view, it is right that the matter should be held in abeyance pending the hearing on 18th February. If the appeal succeeds, then considerable hardship will be imposed upon these applicants if they were required to pay in the meantime. In my view, a stay of execution of just over one month should not cause Dr Sahota any real damage.
10. For those reasons, I believe that this is an appropriate case in which to give permission to appeal and to grant a stay of execution until determination of the appeal which is due to start on 18th February.
ORDER: Application for permission to appeal and a stay of execution granted. (Order not part of approved judgment)