Pope v Branch Energy Ltd (Aka Koidu Holding)

Case-management decisions should stand unless arguably flawed and offering a real prospect of successful appeal. A court may refuse amendments which would introduce materially different, complex or disproportionate claims, especially where they are inadequately pleaded. Serious allegations such as fraud require full and precise particulars, including the loss said to result. A payment made towards the same contractual entitlement must be brought into account: a claimant cannot obtain double recovery merely because the payment was described as ex gratia or came through an insurer. Under Civil Procedure Rules 1998, rule 23.11, an application may be relisted where a party was absent. Money placed in escrow is not part payment until actually paid against the contractual liability.

The claimant sought permission to appeal two orders made by His Honour Judge Griggs in proceedings arising from the presumed death of her son, an employee of Branch Energy Ltd, after his capture by rebels in Angola. The claim was founded principally on an employment-contract entitlement to life-cover payments. The proposed amendments would have added claims concerning three other estates, fraud, negligence, statutory claims and a further corporate defendant.

The first order had been made after the respondent was absent from the hearing and was later relisted and reconsidered. The second order refused further amendments and imposed case-management directions. The central issues were whether the judge could rehear the first application, whether the amendments should be permitted, and whether an insurance payment could reduce any contractual recovery.

1. Permission refused. The renewed applications concerned orders made in the exercise of case-management discretion. The refusal to add claims for the foreign estates was not arguably flawed and had no real prospect of being overturned. Those claims would substantially enlarge and complicate the trial, including because of different issues concerning indemnities and waivers.
2. The judge was entitled to refuse amendments adding fraud and negligence. Fraud is a serious allegation and must be fully and properly particularised. The proposed pleadings contained generalised allegations, did not identify the alleged conduct with sufficient precision, and did not identify a specific pecuniary loss. The negligence claim was similarly unformulated and lacked particulars of the damages sought. Any further claims had to await proper formulation.
3. The proposed claim concerning the Norwich Union payment could not permit double recovery. The Court of Appeal treated Gaca v Pirelli C & Others [2004] 1 WLR 2683 as applicable in principle although that authority concerned personal injury and employer payments. A sum paid towards the contractual life-cover entitlement had to mitigate or discharge that liability, subject to the payment actually being made against it. The benevolence exception did not alter that result.
4. Lady Justice Arden explained that Civil Procedure Rules 1998, rule 23.11 permitted the judge to relist the January application because the respondent had failed to attend. She further clarified that money held in escrow was not part payment merely because it had been placed in the account; discharge required payment of sums against the contractual entitlement. She also observed, without deciding the point, that representation of a foreign estate under rule 19.8 might require recognition under the law of the deceased’s foreign domicile.
5. The renewed applications for permission to appeal were dismissed. The appellant was directed to make a further appointment for the case-management conference within fourteen days, but no further direction was required when the court was informed that the hearing had been relisted.

• Court of Appeal (Civil Division) [2007] EWCA Civ 994: renewed applications for permission to appeal against orders of His Honour Judge Griggs of 17 January 2007 and 19 July 2007 were refused. The first application had been out of time, although time had been extended before permission was refused by a single Lord Justice.
• High Court of Justice, Queen’s Bench Division: the judge exercised case-management powers to refuse or reconsider the proposed amendments and to direct that the existing contractual claim proceed.