BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

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 >> Wagner v Bright Station Ventures Management Ltd [2025] EWHC 1301 (KB) (27 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/KB/2025/1301.html
Cite as: [2025] EWHC 1301 (KB)

[New search] [Printable PDF version] [Help]

Neutral Citation Number: [2025] EWHC 1301 (KB)
Case No: QB-2020-004616

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
27/05/2025

B e f o r e :

THE HONOURABLE MR JUSTICE SWEETING
____________________

Between:
Daniel Maurice WAGNER
Claimant
- and –

Bright Station Ventures Management Limited
Defendant

____________________

Fraser Campbell KC and Celia Rooney (instructed by Mishcon de Reya LLP) for the Claimant
William Hooper (instructed by Squire Patton Boggs (UK) LLP) for the Defendant

Hearing dates: 26th July 2024

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 3pm on 27.05.2025 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. There is a remaining consequential matter arising from the judgment handed down on 19 March 2025 ("the Judgment" or "J2") on which the parties have been unable to agree. The parties have made written submissions inviting me to determine the matter without a hearing. The principal issue requiring resolution is the calculation of the final sum due under the substantive judgment, including interest. There is also Mr Wagner's application for permission to appeal the Judgment, and his application for a stay of execution pending appeal.
  2. Interest

  3. The Judgment quantified sums owed between the parties. These included a Sterling award in favour of Mr Wagner and a Dollar award in favour of BSVM. In J2, I concluded that Mr Wagner should pay BSVM the net sum due. The parties agree that interest is a matter for the Court's discretion.
  4. BSVM contends that interest should be calculated on the net sum owing to the other party in the appropriate currency of the particular judgment debt. This involves calculating interest on the Dollar award and the Sterling award separately up to the date of the Judgment, netting off the total liabilities (including interest) at that date, and then applying judgment interest to the resulting net Sterling sum. BSVM submits that both parties claimed interest in their pleadings and there is no reason to derogate from the conventional approach.
  5. In relation to applicable rates of interest, BSVM contends that the conventional rate for Sterling awards is Base Rate plus 1%. For Dollar awards, BSVM submits that the conventional rate, in the context of a commercial dispute, is US Prime Rate without an uplift (see Lonestar Communications Corp LLC v Kayee [2023] EWHC 732 (Comm); [2023] 2 All ER (Comm) 605 at [14]). BSVM has not asked for an uplift.
  6. Applying this methodology, BSVM calculates the total due to it as of 19 March 2025 to be £171,258.75 ("the Judgment Debt"), on which Judgment Act interest should accrue from the date of judgment.
  7. Mr Wagner takes a different view. His primary position is that no pre-judgment interest should be awarded at all. He argues that BSVM and its parent company, BSVL, were effectively dormant companies during the relevant period and did not incur any actual borrowing costs. Further, he submits that the resolution of the dispute was complicated and delayed by BSVM's conduct, including raising unfounded allegations, and that the Court is entitled to take this into account.
  8. Alternatively, if interest is to be awarded, Mr Wagner argues that the proper approach is to net off all sums to and from him from the date of the last relevant payment, calculate interest on that running net sum, convert all sums to Sterling at that point for the interest calculation, and apply a conventional rate of Base Rate plus 1%. On this basis, he calculates a significantly lower interest figure of £17,881, disputing BSVM's calculation as "startling" and their methodology as "transparently opportunistic and unjustified".
  9. The Court undoubtedly has a discretion in awarding interest. However, the general principle is that a party who has been kept out of money that should have been paid to them ought to be compensated for the loss of the use of that money. This compensation is typically measured by reference to commercial borrowing rates. The fact that a company may have been dormant and did not actually incur borrowing costs does not, in itself, negate the principle that it suffered a loss by being deprived of funds to which it was entitled. The assumption is that, in the absence of proof of actual loss, the loss is fairly measured by the rate a claimant could reasonably expect to pay for a short-term unsecured loan.
  10. Mr Wagner's argument that BSVM's conduct delayed the proceedings was relevant to costs, and I took this into account in J2. However, the issue of whether interest should be awarded on sums found to be due is distinct from the parties' conduct of the litigation. Both parties claimed interest in their pleadings. I am not persuaded that the circumstances of this case justify departing from the usual practice of awarding interest on sums found due.
  11. The primary dispute in respect of the interest calculation concerns the methodology and applicable rates. The ability of English courts to award judgments in foreign currencies has been long established, particularly since the decision of the House of Lords in Miliangos v Frank (Textiles) Ltd [1976] AC 433 (HL), which departed from the previous rule requiring conversion at the breach date for foreign currency debts. Where a judgment is given in a foreign currency, conversion into Sterling is necessary for enforcement purposes. The appropriate date for such conversion is typically the date the court authorises enforcement, although the judgment date itself can be a relevant point.
  12. In this case, I have made awards in both Sterling and Dollars. It is consistent with the principles which allow awards to be made in a foreign currency, to calculate interest on each award in its respective currency up to the date of the Judgment. The conventional rates proposed by BSVM appear appropriate: Base Rate plus 1% for Sterling awards and US Prime Rate for Dollar awards. The Lonestar case supports US Prime Rate as the default rate for US Dollar awards in the Commercial Court, reflecting a baseline for real-world US$ borrowing costs.
  13. Mr Wagner's alternative approach, involving continuous netting and conversion from the date of the last payment, is not a conventional method for calculating interest on mutual liabilities determined at trial. The standard approach is to determine the sums due as of the date of judgment and apply interest thereto. BSVM's method of calculating interest on the separate currency awards up to the judgment date, converting the Dollar amount at that date, netting the sums, and applying judgment interest to the resultant Sterling "Judgment Debt" is in accordance with this conventional approach and provides a clear basis for calculation and enforcement.
  14. Accordingly, interest should accrue on the Sterling award and the Dollar award in their respective currencies up to 19 March 2025, using the conventional rates of Base Rate plus 1% for Sterling and US Prime Rate for Dollars. The total sums including interest as of that date should then be netted off to arrive at the net Sterling "Judgment Debt", on which Judgment Act interest will accrue thereafter.
  15. Permission to Appeal

  16. Following the hearing on 26 July 2024, at which further argument and consequential issues were addressed, I made an order concerning the procedure for seeking permission to appeal from the judgment and the subsequent Reserved Consequentials Judgment (now the March 2025 "J2" Judgment). That order provided, amongst other things, that any application to this Court for permission to appeal in respect of either judgment "may be made upon hand down of the Reserved Consequentials Judgment". It further directed, in accordance with CPR r. 52.12(2)(a), that the time period for filing any appellant's notice to the Court of Appeal in respect of either judgment "shall be extended... to 21 days after hand down of the Reserved Consequentials Judgment".
  17. That order was made to address the procedural requirements concerning applications for permission to appeal from a reserved judgment handed down without the parties' physical attendance. The "date of the decision" for the purpose of CPR r. 52.12(2) is the date of the hearing at which the decision is given, which includes the formal hand down of a reserved judgment. This is the "decision hearing". An application for permission to appeal must ordinarily be made to the lower court "at the hearing at which the decision to be appealed was made" under CPR r. 52.3(2)(a). Even where the hand down is a formality and parties are excused attendance, it still constitutes such a hearing. My understanding was that the judgment had been circulated to the parties prior to hand down, consistent with the order made following the consequential issues hearing (I was however at that stage on circuit conducting a criminal trial). It was my intention that the parties should have an opportunity to seek permission to appeal or further consequential orders.
  18. If a party is not ready to make an application at the decision hearing and no formal adjournment of the hearing has been sought and granted for that purpose, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appeal. The standard 21-day period for filing an appellant's notice under CPR r. 52.12(2)(b) runs from the date of the decision hearing (the hand down). An adjournment of the decision hearing to consider a permission application does not automatically extend this time period, which must be specifically sought and granted by the lower court.
  19. Mr Wagner seeks permission to appeal the decisions recorded in the Judgment. He has also sought permission from the Court of Appeal. The procedural rule, CPR r.52.3(2)(a), provides that an application for permission to appeal must be made "at the hearing at which the decision to be appealed was made".
  20. I consider that I am now technically functus officio and lack jurisdiction to grant permission as it was not sought at the hand-down hearing and there was no formal adjournment of that hearing for the purpose of making such an application. Consequently, I lack jurisdiction to grant permission to appeal J2.
  21. Were I able to entertain the application for permission, I would nevertheless refuse it. The grounds advanced by Mr Wagner essentially seek to re-argue points that were fully ventilated and determined in the Judgment.
  22. Stay of Execution

  23. Mr Wagner applies for an order granting a stay of execution of any order resulting from the Judgment, pending determination of his application for permission to appeal and, if granted, the final determination of the appeal.
  24. The starting position under CPR 52.16 is that an appeal does not operate as a stay of an order or decision of the lower court unless the appeal court or the lower court orders otherwise. The issue for the court is whether there is a risk of injustice to one or both parties if a stay pending appeal is granted or refused (Carvill-Biggs v Reading (Practice Note) [2025] 1 WLR 86, per Snowden LJ at [27]). My discretion in deciding this issue is unfettered (Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474, per Potter LJ at [12]).
  25. A relevant consideration is the risk that the party applying for the stay may be unable to recover from the other party the sum awarded in the event that the judgment is set aside or varied on appeal. The merits of the proposed appeal are not generally a weighty factor in this balancing exercise (Sunico A/S v Revenue and Customs Commissioners [2014] EWCA Civ 1108, per Briggs LJ at [44]).
  26. Mr Wagner contends that there is a real and substantial risk of injustice to him if a stay is not granted. He highlights that under the Judgment, he is due to pay a considerable sum, comprising the net sum due (approximately £83,417.99, estimated at £90,000.00) plus interest, and an interim payment on account of costs in the sum of £350,000.00. His primary concern is that he is very unlikely to be able to recover these monies from BSVM in the event that the Judgment is set aside on appeal. This concern is premised on BSVM's financial position, described as having substantial liabilities, few assets, and apparently not trading, suggesting it is effectively a dormant and impecunious company.
  27. BSVM opposes the grant of a stay, arguing that there is no risk of injustice in permitting enforcement. It is submitted that Mr Wagner's concern about recovery is a new point. BSVM argues that solid grounds are required for a stay (DEFRA v Downs [2009] EWCA Civ 257) and that it is unusual to grant a stay merely to prevent the temporary inconvenience of complying with an unfavourable judgment.
  28. Notwithstanding BSVM's opposition, including the offer of a personal undertaking from Mr Dunbar to repay the Judgment Debt and interim costs payment should Mr Wagner ultimately succeed on appeal, I am persuaded that there is a significant risk of injustice to Mr Wagner if a stay is refused. The evidence presented regarding BSVM's financial position, indicating it may be a dormant and impecunious entity, gives rise to a real concern that recovery of the sums paid might be problematic should the appeal succeed. While an undertaking has been offered, a straightforward stay addresses the risk of non-recovery directly. Conversely, I am not persuaded that there is a comparable risk of injustice to BSVM if a stay is granted for a limited period, particularly given the duration the proceedings have already been on foot.
  29. Therefore, in view of BSVM's financial position and the consequent risk of injustice to Mr Wagner, I find that it is appropriate to order a stay of execution. The stay will operate until the Court of Appeal determines Mr Wagner's application for permission to appeal J2.
  30. Conclusion

  31. For the reasons set out above, I have determined the outstanding consequential matters as follows: (a) I find for BSVM on the arguments relating to the calculation of interest. (b) I find that I lack jurisdiction to grant permission to appeal the Judgment. Were I not functus officio, I would refuse permission. (c) I order a stay of execution of the Judgment, including the requirement to pay the net sum and the interim payment on account of costs, pending the determination by the Court of Appeal of Mr Wagner's application for permission to appeal.
  32. END

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010