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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		1 May 2014

1. JUDGE SEYMOUR QC: The two applications before the court are cross-applications respectively on the part of the claimant, Dany Lions Limited, and on behalf of the defendant, Bristol Cars Limited. The first in time of the applications to be issued was that on behalf of the defendant which was issued on 17 April of this year. The application on behalf of the claimant was issued on 28 April.
2. The background to the applications is important. The applications are made following a trial before Andrews J which resulted in her handing down judgment, as I understand it, on 21 March 2014. In very general terms, the nature of the claim made in the action was breach of contract on the part of the defendant. The contract in question related to a Bristol motor car and the contract provided for the defendant to undertake works, essentially of repair, but to some extent I think also modification, to the car at a particular price. The defendant, in the event, was not prepared to do the work for that price and consequently in the action the claimant claimed against the defendant the alleged excess cost of having the works the subject of the contract carried out by somebody else, in fact a company called Jim Stokes Workshops Limited.
3. The outcome of the trial was that Andrews J entered judgment for the claimant in the sum of £124,173.37, which was a figure which included a principal sum and an amount of interest, and she also gave judgment in favour of the claimant for various other amounts of interest. The order of Andrews J was sealed by this court on 2 April of this year. On 8 April of this year the defendant lodged an Appellant's Notice with the Court of Appeal seeking permission to appeal against the decision of Andrews J, the judge herself having refused permission, and also seeking, at Section 9 of the Appellant's Notice, a stay of execution of the judgment of Andrews J.
4. What then happened was that there were discussions between the parties which resulted in the production of what was described as a Consent Order which was dated 4 April 2014, but apparently sealed on 23 April 2014. It is not material for present purposes whether the terms of the Consent Order were actually agreed before the Appellant's Notice was lodged or not, but it appears likely that at least negotiations in relation to the terms of the Consent Order did precede the lodging of the Appellant's Notice.
5. Paragraph 1 of the Consent Order was in these terms:

"Upon the defendant giving to the court undertakings set out in the schedule hereto, and upon the claimant and the defendant by their solicitors agreeing to the making of this order by consent, it is ordered that: (1) The claimant shall not enforce payment of the sums of (and I can summarise it as all of the figures which were the subject of the order of Andrews J) without giving the defendant not less than seven days' written notice of its intention to enforce payment of those sums."

Paragraph 2 of the order dealt with costs and is not presently material. The schedule to the order included these provisions which are material:

"The defendant undertakes to: (1) Pay in to the client account of its solicitors, Pitmans, the sum of £220,070.84 being the total of the sums referred to in paragraph 1 of this order by 12 noon on 7 April 2014. [That sum is to be called "the monies".] (2) Give Pitmans irrevocable instructions to hold the monies on receipt to the joint order of the defendant and the claimant and not to release the monies to any person without prior written agreement of the claimant and the defendant unless ordered by the court to do so on the application by either the claimant or the defendant; (3) To make an application to the Court of Appeal by 4pm on 8 April 2014 for (3.1) permission to appeal the judgment dated 21 March 2014; (3.2) a stay of the judgment dated 21 March 2014 at paragraph 6 and 7 of the order dated 28 March 2014; (4) to progress all aspects of the application diligently."

6. The next development which is important is that on 11 April 2014, Mr Tim Rutherford, a partner in IBB Solicitors (the solicitors acting on behalf of the claimant) sent an email to Mr Julian Prentice at Pitmans LLP (the solicitors acting on behalf of the defendant). The material part of that email is the last paragraph:

"Accordingly, I have been instructed by my client to give you formal notice pursuant to paragraph 1 of the Consent Order dated 4 April 2014 of my client's intention following the expiry of seven days' notice to enforce payment of the judgment dated 21 March in paragraphs 6 and 7 of the order dated 28 March. By my calculation, my client will be at liberty to take enforcement action from 20 April 2014."

7. The giving of that notice was reported by Pitmans LLP on behalf of the defendant to the Civil Appeals Office and so it was that in a letter dated 15 April 2014, Mr Steve Tighe(?) of Case Management Section A wrote a letter to Pitmans LLP which said this:

"I refer to your Appellant's Notice filed on 8 April 2014 and your letter of 14 April 2014. You have mentioned that the respondent is threatening enforcement from, not on, 20 April 2014. You stated he is applying to lower court for stay. Please clarify whether he has applied to lower court. Please note the Court of Appeal prefers to consider permission to appeal and stay applications together if possible. We judge urgency in relation to actual enforcement steps being taken. Could you notify us when actual steps are being taken. You should file a bundle and transcript of judgment, or note of judgment if the transcript is not available, as soon as possible if the matter is pressing."

8. The solicitors acting on behalf of the claimant then demanded payment by Pitmans LLP of the sums the subject of the Consent Order to which I have referred. Pitmans LLP took the view, it appears, that that demand was not a step to enforce payment of the sums the subject of the Consent Order. Taking that view, there was then some correspondence, the detail of which is not presently material, between Pitmans LLP and the claimant's solicitors and between Pitmans LLP and the Civil Appeals Office in relation to what was happening. In anticipation of the claimant's solicitors doing something, the Application Notice dated 17 April 2014 was issued on behalf of the defendant. By that Application Notice the relief sought was an order that the claimant refrain from enforcing the judgment of Andrews J dated 21 March 2014 pending determination of the defendant's appeal against the judgment to the Court of Appeal filed on 8 April 2014.
9. The position of the claimant is that it has given the defendant notice that it intends to take enforcement action from 20 April in relation to the judgment dated 21 March 2014. The Application Notice issued on behalf of the claimant dated 28 April 2014 sought this relief:

"An order, a copy of which is attached, that pursuant to paragraph 2 of the schedule to the Consent Order dated 4 April 2014 sealed on 23 April 2014 [which is called the Consent Order] the monies held by Pitmans pursuant to the terms of the Consent Order be released to the claimant."

10. There has been a difference of view in the submissions made to me as to what the substance of this application is all about. Essentially, as it seems to me, what I have to have firmly in my mind is that there is outstanding a pending application to the Court of Appeal for a stay of execution in relation to the judgment of Andrews J. I think Mr Jonathan Chew, who appeared on behalf of the claimant, submitted, in effect, that I was not particularly concerned with the outstanding application to the Court of Appeal because Andrews J has refused permission to appeal and, so submitted Mr Chew, the circumstances of the present case would not justify the grant of a stay of execution of the judgment of Andrews J. Interesting though Mr Chew's submissions were, it seems to me they are appropriately addressed to the Court of Appeal and not to me because what I have to be concerned about is not prejudicing the exercise by the Court of Appeal of its jurisdiction in relation to the grant or refusal of a stay of execution in this case.
11. Given the terms of the Consent Order dated 4 April 2014, it is plain that the claimant has gone through the stage of giving seven days' written notice of its intention to enforce payment of the sums of money the subject of the Consent Order, notice having been given in the email of 11 April 2014 to which I have referred. Although Mr Owain Draper, on behalf of the defendant, submitted that calling upon Pitmans LLP to pay the sums that it was holding in its client account did not amount to an attempt to enforce the judgment of Andrews J, in my judgment it is plain that actually it was exactly that – an attempt to enforce the judgment of Andrews J. In those circumstances, it might have been helpful to have invited the Court of Appeal to consider the application for permission to appeal and the application for a stay as a matter of urgency, but that did not happen. Given the terms of the Consent Order, I am completely satisfied that it is appropriate for me to direct Pitmans LLP to pay the sum of £220,070.84 the subject of the Consent Order to the claimant.
12. However, given the outstanding application to the Court of Appeal for a stay of execution, it seems to me that I must limit the effect of the order, which I am otherwise persuaded is appropriate, by providing that compliance with that direction is not required in advance of a determination of the Court of Appeal on the application for a stay of execution, and in the event that the Court of Appeal determines that it is appropriate to grant a stay of execution, then the need to comply with my direction to Pitmans LLP will be further suspended until such time as the Court of Appeal has resolved the appeal of the defendant.
13. It is implicit in that formulation that the Court of Appeal will not stay execution of the judgment of Andrews J unless the Court of Appeal is persuaded to grant permission to appeal, but I think that that is a realistic basis on which to proceed. It is inconceivable that the Court of Appeal would stay execution but refuse permission to appeal.
14. In these rather strange circumstances, I think that is the order I have to make. The claimant succeeds up to a point on its application. The defendant succeeds up to a point on its application. I have been addressed to a limited extent, and only by Mr Draper, in relation to the appropriate orders to make as to costs, so I will say nothing more now so that counsel may make any further submissions to me which they wish.