P & O Ferrymasters Ltd v Radicon Ltd

Permission to appeal requires a proposed ground to have a real prospect of success or to raise another compelling reason. Mitigation does not apply to a claim in debt under a client agreement or debenture where the issue is the amount due. A new point, supported by evidence available at trial but not raised before the judge, cannot ordinarily be revived on appeal through a permission application. The Court of Appeal will not admit new evidence to introduce an irrelevant issue or one incapable of supporting an appeal.

P & O Ferrymasters Ltd v Radicon Ltd arose from a judgment of Jack J in the Queen’s Bench Division. Assetline Ltd and Fairfax Gerald Holdings Ltd claimed sums owed by Radicon Ltd under a client agreement and a debenture. The claim concerned approximately £272,000 held in court, representing debts owed by P & O Ferrymasters Ltd to Radicon.

Jack J held that Assetline and Fairfax were entitled to the whole sum. Radicon did not challenge the underlying legal conclusions or the judge’s calculations, but sought permission to rely on new evidence concerning mitigation and a separate debt of approximately £37,000 owed by Nipress. The central questions were whether either point had a real prospect of success or raised another compelling reason for an appeal, and whether either could properly be raised for the first time at this stage.

Application refused. Lord Justice Rix refused Radicon Ltd permission to appeal and ordered that there be no order for costs.

1. Permission threshold. The applicable tests were whether the proposed grounds had a real prospect of success or whether there was another compelling reason why an appeal should be granted.
2. Mitigation. The mitigation argument was a new point, unsupported by the judgment below and dependent on new evidence, including a statement obtained after Jack J had given judgment. In any event, it had no legal relevance to the claim. The claim was one in debt under the client agreement or debenture. The court was concerned with the amount owed, not with whether a separate negotiation between Assetline, Fairfax and Silverburn would have succeeded. The new evidence should not be admitted, and the point could not support an appeal.
3. Nipress debt. The proposed point concerning the approximately £37,000 Nipress debt had not been before the trial judge. Radicon had drafted an amended defence raising it, but permission to amend had been refused. The evidence was available at trial, and the point could not be introduced on appeal through new evidence. It therefore raised neither a real prospect of success nor another compelling reason.
4. Scope of the trial judgment. Jack J had only needed to determine whether Radicon’s debt to Assetline and Fairfax exceeded approximately £272,000; he did not need to determine its precise amount. The possible entitlement to the Nipress debt depended on the balance of account and did not alter the refusal of permission.

1. Court of Appeal (Civil Division): Lord Justice Rix refused Radicon Ltd’s application for permission to appeal on 29 October 2001. [2001] EWCA Civ 1671.
2. Queen’s Bench Division: Jack J held that Assetline Ltd and Fairfax Gerald Holdings Ltd were entitled to the approximately £272,000 held in court under the client agreement and debenture.