Otis Vehicle Rentals Ltd v Cicely Commercials Ltd

Under Civil Procedure Rules rule 52.9, an appeal notice may be struck out only where there is a compelling reason. The power is exceptional and should not be used for tactical intermediate skirmishing. An alleged concession will not justify striking out an appeal where the relevant submission is reasonably capable of another interpretation and the judge did not rely on it as a concession.

Pending an appeal, the court may preserve the parties’ positions by conducting a balancing exercise. Although a successful claimant is ordinarily entitled to the fruits of judgment, appropriate security may be ordered where the evidence indicates a real risk that the judgment sum will not be recoverable.

Following a quantum trial, Her Honour Judge Kirkham entered judgment for Cicely Commercials Ltd in the sum of £362,104.03 inclusive of interest. Liability had been admitted. The judge refused permission to appeal and a stay of execution.

Otis Vehicle Rentals Ltd subsequently obtained permission to appeal and sought relief concerning enforcement. Cicely applied to strike out the appeal notice under Civil Procedure Rules rule 52.9, alleging that Otis had misled the court by making a concession about the character of the buy-back agreement. The court also considered whether, after payment of the judgment sum, an order should secure the disputed balance pending the appeal.

1. Strike-out application. The application to strike out the appeal notice under Civil Procedure Rules rule 52.9 was refused. The rule permits strike-out only where there is a compelling reason, and its exceptional nature is reinforced by the cautionary note accompanying the rule.
2. The submission relied upon did not amount clearly to a concession that the buy-back agreement was a contract of indemnity. It could reasonably be read as describing Otis’s case. The trial judge had not characterised her conclusion as resting on such a concession.
3. The appeal remained arguable. The court had granted permission on the basis that the true construction of the buy-back agreement might require payment of the price to be accompanied by transfer of the property and delivery up of the vehicles. It was therefore arguable that credit should be given for the vehicles’ value, or that damages should be awarded in lieu of the price on equitable grounds.
4. Interim protection. The court accepted that it had power to preserve the position pending the appeal by conducting the balancing exercise illustrated by Winchester Cigarette Machinery Ltd v Payne (No 2), The Times, 15 December 1993. A successful claimant is ordinarily entitled to the fruits of judgment, but the court may order security where the circumstances disclose a risk that repayment will be difficult.
5. Repayment of the money to Otis was not justified. However, the position could fairly be secured by payment of £184,696.98 into court, into a joint solicitors’ account, or by a bank guarantee acceptable to Otis’s solicitors. The sum was ordered to be paid into court within seven days unless the parties agreed an alternative form of security.

• Court of Appeal (Civil Division): considered applications to strike out the appeal notice, set aside permission, and obtain a stay or equivalent protective order. The strike-out application was refused, permission to appeal was preserved, and security for £184,696.98 was ordered pending the appeal.
• County Court: on 16 October 2001, Her Honour Judge Kirkham gave judgment for Cicely Commercials Ltd for £362,104.03 inclusive of interest, refused permission to appeal, and refused a stay of execution.