England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
ON APPEAL FROM LUTON COUNTY COURT
(Mr Recorder Clover)

		The Royal Courts of Justice The Strand London Tuesday 18 June 2002

Tuesday 18 June 2002

1. LORD JUSTICE SIMON BROWN: This is the defendant company's application, substantially out of time, for permission to appeal against the order of Mr Recorder Clover in the Luton County Court on 25 July 2001, giving judgment for the claimant for £7,717.93, with costs to be assessed.
2. Put at its very simplest, the claimant company, based in Italy and run for many years by a Mr de Luca (who followed his father in that role), has acted as export agent for the sale of Italian foodstuffs in this country. Since 1993 the claimant acted as export agent for an Italian company, Pecos SPA, most notably in respect of the sale of canned potatos to the Netto chain of stores in the north of England. Mr de Luca had in fact introduced Pecos to Netto.
3. From 1996 the defendant company replaced Pecos as the claimant's principal in respect of the agency agreement under which potatoes, and indeed other foodstuffs, continued to be supplied to Netto. The defendant company is largely run by Mr and Mrs Creek and I, just as the recorder below, expressly gave permission for Mr Creek, who is the defendant company's secretary, to represent it in court for the purposes of these proceedings.
4. As to the defendant replacing Pecos as principal, the position was put this way in a document written by Mrs Creek in 1998:

"Coverimport is the UK arm for the Pecos family in Italy and is responsible for all UK sales, marketing and due diligence."

5. Accordingly from 1996 the defendant became liable for the claimant's commission on sales achieved in the UK at a rate which was reduced by agreement between the parties in 1998 to the modest sum of 1 per cent.
6. On 27 January 2000 the defendant summarily terminated the claimant's agency agreement. It was its case that the claimant had breached that agreement, thus entitling it to terminate in this way. It also counterclaimed. The claimant contended that the defendant had breached the agreement itself and also the terms of the Commercial Agents (Council Directive) Regulations 1993. The judge, having heard evidence in detail from both Mr Creek and Mr de Luca, preferred the evidence of the latter. He considered all the various breaches and criticisms alleged by Mr Creek on behalf of the defendant company and he rejected the lot. In the result, he found that the immediate termination of the agency agreement had been unlawful and he duly proceeded to his task of assessing damages and in addition assessing an appropriate indemnity award under regulation 17 of the 1993 Regulations. He also, of course, dismissed the counterclaim.
7. The defendant's explanation for having delayed making this application for permission to appeal is, I have to say, to a lawyer's mind bizarre and wholly unsatisfactory. Initially, Mr Creek explains, the defendant decided not to appeal but that, he contends, was on the assumption that the claimant's costs would prove to be around £6,000 and not, as claimed when the bill arrived some four months later, marginally over £10,000. That, as I have indicated, is not a legitimate basis upon which to seek to extend time for appealing. But, as I explained to Mr Creek in the course of the hearing, if the merits of his appeal were strong enough, who knows but that the court might not have been prepared, the inadequacy of the excuse notwithstanding, to extend time.
8. His problem is, however, that the application for permission to appeal itself has on analysis no true merit. I am, I am afraid, wholly unpersuaded by anything which Mr Creek has put before me, either in writing before this hearing or in the course of his brief remarks at today's hearing, that there is any cogent basis upon which this judgment can be challenged. Ultimately the judge had to form a view as to which of the two main protagonists, Mr Creek for the defendant and Mr de Luca for the claimant, he thought to be most reliable. He concluded that issue in favour of the claimant and, frankly, the judgment necessarily followed from that point.
9. There is, in short, no merit either in the application to extend time or in the proposed substantive appeal, which would itself be doomed to inevitable failure (with a further substantial costs liability). I accordingly refuse permission on both matters.
ORDER: Applications refused