Halton International (Holidings) Sarl & Anor v Guernroy Ltd & Ors

A condition attached to permission to appeal may be varied under CPR 52.9(1)(c), including where permission was granted on paper, but the application must be made promptly after the grounds arise. Delay, unexplained non-compliance and persistent failure to obey adverse costs orders weigh strongly against relief.

In assessing whether an impecunious corporate appellant can comply with a payment condition, the court may consider a closely connected funder who is the effective beneficiary of the appeal, particularly where that person is himself liable for the costs and has not shown impecuniosity. CPR 3.1(7) is not a means of appealing or rearguing an earlier order absent a material change of circumstances or material misleading of the original judge.

The claimant sought variation or revocation of a condition imposed by Lawrence Collins J on 9 November 2006 when granting permission to appeal against Costs Judge Campbell’s order of 8 September 2006. The condition required payment into court of £730,000.

The claimant asserted that it was impecunious and unable to obtain funding. The evidence showed a close connection with Dr Tabbara, who funded the application and stood to benefit from the appeal, but did not assert that he lacked the means to comply. The issues were whether the condition should be varied under CPR 52.9(1)(c) or CPR 3.1(7), and whether access to justice and Article 6 affected the result.

1. CPR 52.9(1)(c). The rule permits variation of a condition attached to permission to appeal, including a condition imposed on a paper application. It contains no fixed time limit because a compelling reason may arise later, but the application must be made promptly after the grounds arise. The five-month delay after the compliance date, coupled with the absence of a satisfactory explanation, was fatal.
2. The court applied the approach in Sayers v Clarke Walker [2002] 1 WLR 3095 and Smith v Brough [2005] EWCA Civ 261. Finality of litigation and the administration of justice were important considerations. A bare reservation of rights did not keep the appeal alive. The evidence did not adequately explain the delay, as required by CPR 3.9(2).
3. Impecuniosity had to be assessed realistically. Although Halton itself lacked assets, the appeal was principally funded for the benefit of Dr Tabbara. He was closely connected with Halton, had been ordered to pay the relevant costs and had not shown that he lacked resources. It would therefore be artificial to consider Halton’s position in isolation.
4. The principles in MP York Motors v Edwards [1982] 1 WLR 444, Hammond Suddards v Agrichem International Holdings Limited [2001] EWCA Civ 2065, Olfatawura v Abbey [2003] 1 WLR 275, CIBC Mellon Trust Company v Mora Hotel [2002] EWCA Civ 1688, Ali v Hudson [2003] EWCA Civ 1793 and Days Healthcare UK Limited v Hishiang Machinery Manufacturing Company Limited did not justify revocation. The condition did not stifle a genuine appeal on the evidence, and the unpaid costs remaining even after a successful appeal exceeded the condition.
5. CPR 3.1(7). Following Collier v Williams [2006] 1 WLR 1945, the power to vary or revoke an order was not available for reconsideration on the same material or as an appeal to a judge of coordinate jurisdiction. There was no material change supporting relief and no suggestion that Lawrence Collins J had been misled. Both applications were dismissed.

This was a first-instance application in the High Court. The judgment describes permission to appeal granted by Lawrence Collins J on 9 November 2006 subject to a £730,000 payment condition. The present court dismissed the applications to vary or revoke that condition.