Capital Bank Plc v Soor

Permission to appeal may be refused where the proposed grounds have no substance. A clear consent order remains effective where an admitted collateral agreement identifies the limited circumstances in which payments may be credited. A party seeking credit for alleged payments must provide sufficient evidence to identify them and connect them with the relevant liabilities. An objection to late evidence will not justify permission where the applicant was himself in default, had adequate opportunity to respond, and the evidence raises no new issue.

Capital Bank Plc v Soor concerned guarantees given for the liabilities of Euro Autos Ltd. The claim settled at trial by a Tomlin-form consent order requiring monthly payments, with the full balance and costs becoming due on default. The defendant later sought to vary the order, asserting that payments had not been credited.

The Central London County Court rejected the application to vary and entered judgment for £35,189.57. The defendant alleged that the claimant’s evidence was late and that three payments remained untraced. He also sought to rely on copy cheques obtained after the county court hearing. The central issues were whether the evidence disclosed an arguable appeal, whether the alleged payments satisfied the collateral agreement, and whether the application should proceed in the defendant’s absence.

1. Disposition. The Court of Appeal unanimously refused permission to appeal. The respondent was awarded costs, summarily assessed at £3,120 exclusive of VAT.
2. The consent order was clear and remained effective. The claimant had admitted a collateral agreement allowing credit only for payments which the defendant could prove were remitted in respect of the five finance agreements relevant to the proceedings, remained with the claimant, and had not already been included in the calculations. There was no basis for varying or setting aside the order.
3. The complaints concerning the alleged payments disclosed no arguable error. Six of the nine items had been traced but related to other agreements. The two payments supported by copy cheques were later analysed and shown to have been properly allocated, with the relevant sums already credited. No adequate information had been provided concerning the remaining telegraphic transfer, so the claimant could not verify that it related to any relevant agreement.
4. The challenge to the claimant’s late evidence had no substance. The defendant had filed no formal evidence, had received the claimant’s witness statement and exhibits more than two weeks before the hearing, and had been pressed since September for the information needed to investigate the payments. The evidence raised no new point and could have been answered in time.
5. The court was entitled to proceed despite the defendant’s absence. The adjournment application was unsupported by sufficient medical evidence, delay would prejudice the respondent in relation to an imminent bankruptcy hearing, and the defendant had a history of procrastination and non-co-operation. The defendant retained the potential opportunity to apply for a rehearing.

• Court of Appeal (Civil Division): Application for permission to appeal refused. Costs assessed summarily at £3,120 exclusive of VAT.
• Central London County Court: On 17 December 2004, His Honour Judge Knight QC entered judgment for Capital Bank Plc for £35,189.57 and costs and dismissed the application to vary the consent order.