Esso Petroleum Company Ltd v Miller & Ors

Permission to appeal should be granted where the proposed appeal has a realistic prospect of success on jurisdiction or discretion, particularly where relevant evidence was unavailable or insufficiently tested below. In an application to set aside a judgment entered by consent, the distinction between a consent judgment founded on a binding agreement and one founded on mere acquiescence may provide an arguable jurisdictional route. The appellate court may leave the admission of new evidence to the full court hearing the appeal.

Mrs Cecilia Miller applied for permission to appeal against His Honour Judge Walton’s refusal to set aside a judgment entered against her by consent in Esso’s 1994 action. The consent judgment had been entered on 2 September 1997, but the application to set it aside was not made until 6 November 2000.

She argued that she had signed a petrol-station licence as a nominee for her husband and brother-in-law, after assurances that she would not be personally liable. The judge considered that he lacked jurisdiction to set aside the judgment and, alternatively, would have refused relief in his discretion. The application concerned whether there was a realistic prospect of success on jurisdiction and discretion, and whether further documents should be admitted as new evidence.

1. Permission granted. The proposed appeal had a realistic prospect of success and should proceed to a full court.
2. The jurisdiction issue turned on the distinction identified in Siebe Gorman & Co Ltd v Pneupac Ltd, [1982] 1 WLR 185, between a consent judgment following a binding contract to that effect and one representing only the consenting party’s acquiescence. There was a realistic prospect that the full court might place Mrs Miller’s case on the other side of that distinction.
3. On discretion, the court considered that the evidence, including documents already before the judge and further material tendered on the application, could support Mrs Miller’s account. There was therefore a realistic prospect that the discretion should have been exercised on the footing that she had a factual case which, if jurisdiction existed, might justify setting aside the judgment.
4. Potential prejudice to Esso did not remove that prospect. The judgment had not been executed because of an outstanding counterclaim, and the possible limitation consequences for claims against the other alleged licensees had not been raised below. An open offer by the Miller brothers to accept liability as the true licensees was also relevant.
5. The full court was left to decide whether to admit the new evidence. Notice of appeal was to be served within seven days. Costs were costs in the appeal.

• Court of Appeal (Civil Division): permission to appeal granted from His Honour Judge Walton’s decision in the Chancery Division. The proposed appeal was to proceed to a full court, with the question of admitting new evidence reserved.