Witham v Commercial Union Capital Ltd

Permission to appeal from an appellate decision is subject to the statutory threshold that the proposed appeal raises an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear it. A claim that a settlement was procured by third-party economic duress requires, where the agreement is enforced by the other contracting party, proof that the other party knew or had constructive notice of the duress, or procured the agreement through the duressor. A speculative or inadequately pleaded allegation which cannot realistically satisfy that requirement does not justify permission to appeal.

The claimant brought contract and defamation claims against Commercial Union Capital Ltd and its chairman. Correspondence and subsequent discussions resulted in an alleged settlement of both claims. The claimant later contended that the settlement of the defamation claim was invalid because his solicitors had pressured him to accept it by threatening to come off the record and thereby affect his legal aid.

Master Rose dismissed the defendants’ application to strike out the defamation claim. Mr Justice Gray allowed the defendants’ appeal and held that the claims had been compromised. The claimant applied to the Court of Appeal for permission to appeal, principally relying on economic duress and his medical difficulties.

1. Application dismissed. The claimant failed to show a properly arguable case or any basis satisfying the statutory permission threshold.
2. Under Access to Justice Act 1999, section 55(1), effectively replicated by Part 52.13 of the Civil Procedure Rules 1998, permission could be granted only if the proposed appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it.
3. The alleged pressure from the claimant’s own solicitors did not fall within the traditional categories of duress. It could potentially be analysed as third-party economic duress, but the claimant had not distinctly advanced that allegation before Mr Justice Gray.
4. Even assuming that the solicitors’ conduct could amount to duress sufficient to vitiate a contract, the claimant could not realistically prove that Commercial Union Capital Ltd had actual or constructive knowledge of the duress, or had procured the settlement through the solicitors’ agency. The principle was supported by Kesarmal [1954] 1 Weekly Law Reports 380.
5. Mr Justice Gray had properly dealt with the other arguments concerning the scope of the offer, authority, consideration and the absence of an apology. No important point of principle or practice, or other compelling reason, was established.

1. Court of Appeal (Civil Division): Application for permission to appeal dismissed.
2. High Court, Queen’s Bench Division: Mr Justice Gray allowed the defendants’ appeal against Master Rose’s dismissal of the strike-out application and held that the claims had been compromised.
3. Master Rose: Dismissed the defendants’ application to strike out the defamation claim.