Wittman (UK) Ltd v Willdav Engineering SA

An appeal court may require an appellant to pay the judgment debt into court, or provide security, only where there are compelling reasons under CPR rule 52.9. The relevant considerations are not exhaustive. They include the practical prospects of enforcement, evidence of a risk that assets will be put beyond reach, the appellant’s resources and disclosure, whether the appeal would be stifled, and the timing of the application.

Foreign incorporation, uncertainty about financial means or beneficial ownership, and misleading evidence at trial do not alone justify such an order. The power is protective, not disciplinary, and a late application may create material practical prejudice to the appellant.

The respondent obtained judgment in the Queen’s Bench Division against the Swiss appellant under a guarantee given in respect of equipment supplied to the appellant’s indirect subsidiary. Her Honour Judge Alton awarded £405,255, interest and costs.

The appellant obtained permission to appeal and a stay of execution. Before the substantive appeal was heard, the respondent applied under CPR rule 52.9(1)(c) for an order requiring payment into court of the judgment debt and a sum on account of costs. The central issue was whether compelling reasons justified imposing that condition on the appeal.

1. Application refused. Moore-Bick LJ held that the respondent had not established sufficient grounds to require payment of the judgment debt or security as a condition of the appellant pursuing its appeal.
2. CPR rule 52.9 gave the court a discretion to impose such a condition, but rule 52.9(2) confined its exercise to cases where there was a compelling reason. The features identified in Hammond Suddards v Agrichem [2001] EWCA Civ 2065 were useful indications of relevant matters, not an exhaustive code.
3. The appellant’s Swiss domicile did not itself make enforcement especially difficult. It was amenable to the Swiss courts, and the judgment referred to arrangements under the Lugano Convention for enforcing English judgments in Switzerland. The respondent’s uncertainty about the appellant’s assets, its beneficial ownership, and its ability to pay did not establish the required risk. Nor could an adverse inference be drawn from non-payment while a stay of execution was in force.
4. The trial judge’s finding that the appellant’s managing director had given a misleading impression about his control of the company raised a concern about probity. It did not, however, justify the further inference that the appellant would put assets beyond ordinary enforcement if its appeal failed. The conditional-payment power was not to be used as a disciplinary measure for the appellant’s conduct at trial.
5. The application was also made nearly three months after permission to appeal and only about a month before the listed hearing. Delay was not automatically decisive, but an order at that stage would require security to be raised within a very short period and would cause the appellant considerable difficulty. Those circumstances reinforced the conclusion that no condition should be imposed.

• Court of Appeal (Civil Division). In this interlocutory application in the pending appeal, the court refused the respondent’s request for a condition under CPR rule 52.9 requiring payment into court or security. The substantive appeal was not determined by this judgment: [2007] EWCA Civ 521.
• High Court of Justice, Queen’s Bench Division (Her Honour Judge Alton). Judgment was given for the respondent for £405,255, interest and costs. The appellant lodged a notice of appeal, received permission to appeal, and obtained a stay of execution pending appeal.