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England and Wales High Court (King's Bench Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> JD Wetherspoon PLC v Burger (Re Consequential Matters) [2025] EWHC 1289 (KB) (23 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/KB/2025/1289.html
Cite as: [2025] EWHC 1289 (KB)

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Neutral Citation Number: [2025] EWHC 1289 (KB)
Case No: KA-2023-000191

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
23/05/2025

B e f o r e :

THE HONOURABLE MR JUSTICE SWEETING
____________________

Between:
J D WETHERSPOON Plc
Appellant
- and –

(1) Stephenus Bernadus BURGER
Respondent
(2) Risk Solutions BG Ltd.
First Defendant

____________________

Johnathan Payne (instructed by Kennedys Law LLP) for the Appellant
Lia Moses (instructed by Penningtons Manches Cooper LLP) for the Respondent

Hearing dates: 4 March 2025

____________________

HTML VERSION OF APPROVED CONSEQUENTIAL JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 23.05.2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    THE HONOURABLE MR JUSTICE SWEETING

    Mr Justice Sweeting:

    Introduction

  1. This judgment addresses consequential matters arising from my judgment, handed down on 21 May 2025, allowing the appeal brought by J D Wetherspoon PLC ("JDW") against Mr Stephanus Burger ("Mr Burger"), the First Respondent. The Second Respondent, Risk Solutions B G Limited, played no part in the trial or the appeal. I allowed JDW's appeal on Grounds 1, 2, 3 and 5, so that the Order of Mr Recorder Shepherd dated 20 September 2023 should now be set aside. The principal consequential issues requiring determination and on which the parties are unable to agree are the date by which sums paid by JDW under the set-aside order should be repaid, the rate of interest payable on those sums, and against whom the repayment order should be made.
  2. Factual Background

  3. The trial in this matter took place at the Central London County Court between 18 and 20 September 2023. Following that hearing, the judgment forming the subject of this appeal was handed down on 20 September 2023. The Order made by the learned Recorder on that date included the entry of judgment for the Claimant (Mr Burger) against the Second Defendant (JDW), an order for JDW to pay the Claimant damages in the sum of £69,775.50, plus interest of £1,533.17 under section 69 of the County Courts Act 1984, and costs on the standard basis. In all JDW was made liable for costs and damages totaling £188,698.24.
  4. JDW had until 12 October 2023 to pay the costs and damages ordered. On 10 October 2023, pursuant to that Order, JDW paid £98,698.24 relating to damages and £90,000.00 on account of costs, to Pennington Manches Cooper ('PMC'), Mr Burger's solicitors.
  5. An Appellant's Notice was filed with the court on 6 October 2023. It is a requirement that the grounds of appeal are attached to a notice of appeal. Thus, the fact that an appeal was being pursued and the basis of the appeal has been known since that date. Permission to appeal was granted on 22 February 2024, at which point a Stay of the Order of 20 September 2023 was ordered by Martin Spencer J. However, by then, the monies had been demanded and paid. I am told that JDW requested the return of the monies on numerous occasions following the grant of the Stay, but no monies have been returned by PMC or Mr Burger.
  6. Power to Award Interest

  7. Both parties accept that I have the power to order Mr Burger to pay interest on the sums he is being ordered to repay. The principle that the court has power to award interest in circumstances where an order is set aside on appeal and monies paid under that order must be repaid is well-established. I am satisfied that such a power exists (see further below).
  8. The Rate of Interest

  9. The parties disagree on the appropriate rate of interest. JDW requests interest on monies paid in 2023 at the judgment rate of 8% per annum, or no less than 6% per annum. JDW refers to Section 17 of the Judgments Act 1838 for judgment sums and Section 35A of the Senior Courts Act 1981 which confers a broad discretion on the court regarding interest rates. It is argued that the repayment of monies paid under an order which is set aside is akin to a judgment debt, and the normal judgment rate is 8%. It is also submitted by analogy that where interest is awarded for a period before judgment, the rate is at large and often a commercial rate. JDW observes that base rates have been between 5% and 5.25% during the relevant period.
  10. Conversely, Mr Burger contends that a rate of 1% per annum is appropriate. He refers to Multiplex Construction Ltd v Cleveland Bridge Ltd EWCA Civ 133, in which, he says, the rate was 1% above base rate in a commercial case. He argues that 8% is excessive given this is a personal injury claim, not a commercial transaction. His proposed draft order includes interest calculated at 1%.
  11. In Multiplex Construction Ltd v Cleveland Bridge Ltd [2008] EWCA Civ 133; 118 Con LR 16, CA, the Court of Appeal considered the return of an interim payment of costs following a successful appeal. While the primary issue was whether interest was payable at all, the court ultimately ordered the repayment of the interim payment "at base rate plus 1% from the date on which it was paid... until the date when it is repaid". Lord Justice May noted that he would personally find it surprising if the court did not have power to award interest "in a commercial situation such as this, where a relatively large sum of money has changed hands pursuant to an order of the court and where, in effect, the court is ordering it to be repaid".
  12. While this case arises from a personal injury claim, the repayment concerns monies paid under a court order which has now been set aside. The principle is that the party who received the money has had the benefit of it. As JDW submits, there is a danger that if the date of payment is delayed and the interest rate is too low, Mr Burger could achieve a better return by retaining and investing the money. I can see no basis for ordering a rate which is below what could realistically be obtained if the money had been invested during the period it has been held. A rate reflecting commercial reality is appropriate.
  13. Multiplex Construction provides a clear precedent for applying base rate plus 1% in similar circumstances concerning the return of monies paid under a court order that was later reversed. Given the prevailing base rates during the period the money has been held by Mr Burger or his solicitors, this rate provides a fair reflection of a commercial return. JDW's alternative submission of no less than 6% is also consistent with this approach and, I consider, easier to apply where rates have fluctuated.
  14. Accordingly, I conclude that the appropriate rate of interest is 6% per annum. That rate should apply from the date the monies were paid by JDW, being 10 October 2023 or such other date on which any particular tranche of money was paid, until the date of repayment.
  15. Timing of Repayment and Application for Stay

  16. JDW seeks the return of all sums no later than 28 days from the date of my order. Mr Burger proposes a split repayment: £110,000 within 14 days (later adjusted to 4 June 2025 in his draft order), with the balance and interest payable only 21 days after his application for permission to appeal to the Court of Appeal is determined (on the basis that the Court of Appeal could order a further stay if permission is granted). Mr Burger argues that this delay in repaying the balance is necessary to preserve the position for the Court of Appeal to consider whether there should be a stay, claiming he will suffer irreparable harm if ordered to repay the remaining sums sooner.
  17. I do not accept that a partial stay of repayment is appropriate. While Mr Burger claims irreparable harm would result from immediate repayment of the balance, no details or evidence have been provided to substantiate this assertion. The simple assertion of irreparable harm is insufficient to justify delaying repayment of monies which fall to be repaid following judgment. The monies were paid in October 2023 and have been held since then. JDW requested their return following the grant of a Stay in February 2024, but this did not occur.
  18. An appeal by Mr Burger to the Court of Appeal would constitute a second appeal, which requires permission from the Court of Appeal itself under CPR r. 52.7. The threshold for obtaining permission for a second appeal is high. JDW is entitled to the return of its money now that the underlying order requiring payment will be set aside. The prospect of a further appeal, for which permission has not yet been sought and may not be granted, should not delay the repayment of these substantial sums.
  19. JDW paid the monies on 10 October 2023. Mr Burger or his solicitors have had the benefit of these sums for a considerable period. Repayment should be made promptly. The dates proposed in the final Order proposed by JDW represent an appropriate timetable for repayment.
  20. Order Against Whom

  21. A final point arises as to whether the repayment order should be made, in part, against Mr Burger's solicitors, PMC, particularly in relation to the sum paid on account of costs. JDW's draft order includes an order against PMC. However, Mr Burger submitted that there was no jurisdictional basis to make an order for repayment against his solicitors, who are non-parties to the proceedings. He also clarified that the sum of £97,130.87 paid on account of costs included an additional amount of £7,130.87 ordered under CPR r.36.17(4), with the payment on account of costs itself being £90,000.
  22. The recipient of the benefit of the original judgment and the monies paid under it was Mr Burger. While his solicitors held the funds, they did so on his behalf. The underlying liability, now extinguished by the successful appeal, was Mr Burger's. An order for repayment should properly be made against the party who received the benefit of the order that has been set aside.
  23. In these circumstances, I conclude that the order for repayment, encompassing all sums paid by JDW under the Order dated 20 September 2023, including damages and costs, should be made against the First Respondent, Mr Burger, alone.
  24. Conclusion

  25. For the reasons set out above, the sums paid by JDW under the Order of 20 September 2023 must be repaid by Mr Burger.
  26. The principal sum paid by JDW was £188,698.24, comprising [£98,698.24 for damages and £90,000.00 for costs. Interest is payable on this sum at 6% per annum from 10 October 2023 (or such other date of payment as may apply in respect of any individual tranche of monies) until the date of repayment.
  27. Mr Burger shall also pay JDW's costs of the claim and the appeal on the standard basis, not to be enforced without further Order.
  28. Having determined the issues which divided them following the judgment it remains the sensible course for the parties to agree a draft order inserting the relevant amounts.
  29. END

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