England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, COMMERCIAL COURT
Mr Justice Clarke
2006 Folio 1267

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/10/2013

Lord Justice Tomlinson :

1. I heard oral argument from Mr Steven Berry QC for two hours on Friday 4 October 2013 on his renewed application for permission to appeal on Grounds 1-7. The judge himself gave permission to appeal on Grounds 9, 10, 11 and 12 (albeit then differently numbered) and Gloster LJ gave permission to appeal on Ground 8 on the paper application.
2. I have subsequently had an opportunity to read those parts of the judgment helpfully identified for me by Mr Pillow as being relevant to the application and to revisit Mr Berry's skeleton argument in support thereof in the light of his helpful submissions.
3. In the result I am in no doubt that the Appellants should be granted permission to appeal on Grounds 1-7.
4. Grounds 5-7 are, as it seems to me, intimately bound up with Grounds 8-12 and raise the same or similar and related issues. It would in my judgment be artificial and unfair for the Appellants to be unable in their arguments on Grounds 8-12 to argue the issues raised by Grounds 5-7. It might also have the effect of artificially constraining the court's consideration of the issues raised by Grounds 8-12. In any event, Grounds 5-7 are in my judgment fairly arguable in their own right and enjoy a real prospect of success. In particular, and central to the entire appeal, it is not immediately obvious that there was an actual or realistic possibility of a conflict of interest and duty on the part of Mr Mikhaylyuk when negotiating the Henriot charters. It would be completely unrealistic for Grounds 8-12 to be argued without the opportunity to revisit this issue. The Court of Appeal is as well placed to evaluate the issues raised by Grounds 5-7 as was the judge. His conclusions were not based on his appraisal of any oral evidence, save possibly his rejection of Mr Nikitin's explanation for the Ruperti Payments, for there was no other oral evidence relevant thereto.
5. Grounds 1-4 fall into a slightly different category. However, they again raise issues on which the Court of Appeal is almost as well-placed as was the judge since the judge heard no oral evidence relevant to these issues other than that of Mr Nikitin, whose cross-examination on these points on Day 12 of the trial was extremely short. The judge reached the conclusion that the explanation for the payments was probably either the first or the third of those canvassed at paragraphs 389 and 504 of his judgment, yet those possibilities are, so far as concerns attribution of motive to Mr Nikitin, arguably inconsistent. Again my conclusion is that Grounds 1-4 are fairly arguable in their own right and enjoy a real prospect of success, but that in any event it would be artificial and unfair for the appeal to proceed on the remaining Grounds without the opportunity to examine the basis upon which it was determined that the Ruperti Payments reflected adversely on Mr Nikitin.
6. Accordingly, I grant permission to appeal on the remaining Grounds, Grounds 1-7. I understand that the hearing of the appeal has already been fixed with a time estimate which anticipates the eventuality of permission being granted to argue these additional Grounds. No further direction is therefore necessary.