Pope v Energem Mining (IOM) Ltd & Anor

For calculating the balance of an admitted judgment debt, money paid into court for a claimant and used to discharge the claimant’s concluded costs liabilities is treated as money received by the claimant, even if it was not paid directly into her hands. An appellate court cannot reopen concluded appeal decisions merely because a litigant alleges error or bias. Reopening under the Civil Procedure Rules 1998, rule 52.17, is truly exceptional and requires real injustice, exceptional circumstances and no alternative effective remedy.

An ex gratia payment arising from a businesslike insurance compromise falls outside the benevolence exception, which concerns assistance given by an independent third party out of pure benevolence and charity. It cannot support double recovery.

Jason Pope, a geologist employed by Energem, disappeared during a rebel attack at an Angolan mine. His employment contract required Energem to insure his life. Energem’s parent company held a Norwich Union policy, under which a further ex gratia payment was made in respect of the abducted employees and ultimately paid into court.

Mrs Pope sued Energem as Jason Pope’s personal representative for breach of contract. Royce J gave judgment for £273,711.60 but ordered deduction of the Norwich Union payment. His order dated 11 February 2010 treated £157,821 as the payment and left £115,890.60 due. Mrs Pope appealed the calculation, sought permission to appeal on costs, and applied under rule 52.17 of the Civil Procedure Rules 1998 to reopen earlier refusals of permission. The central issues were the correct credit and whether the earlier decisions could be reopened.

Limited success. The appeal was allowed only to correct the net judgment sum. Energem’s total liability was £273,711.60. Mrs Pope had received £152,477.77 from the Norwich Union funds, including £36,587.17 used to discharge interim costs orders. The correct balance was therefore £121,233.83. Those sums were treated as received by Mrs Pope because they had been released for her benefit and used to meet her liabilities. The court could not go behind concluded costs orders.

1. Reopening earlier decisions. Section 54(4) of the Access to Justice Act 1999 and paragraph 4.8 of PD52 confirmed that there was no ordinary appeal from a refusal of permission to appeal. The exceptional jurisdiction described in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 and now governed by rule 52.17 required necessity to avoid real injustice, exceptional circumstances making reopening appropriate, and no alternative effective remedy. Those conditions were not met.
2. Bias. Generalised and unsubstantiated allegations that an earlier judge was wrong did not establish actual or apparent bias. A litigant could not choose her judge by making such allegations. The earlier decisions therefore could not be reopened.
3. Benevolence exception. Although the court lacked jurisdiction to revisit the issue, it considered it separately. The Norwich Union payment was a businesslike compromise arising from an insurance policy, despite being expressed as ex gratia. It was unlike the pure benevolence and charity contemplated by Gaca v Pirelli PLC [2004] 1 WLR 2683. Mrs Pope was not entitled to recover both the payment and the full contractual liability.
4. Costs. The trial judge had taken the claimant’s settlement offers into account in awarding indemnity costs. The Court of Appeal was not in as good a position to exercise that discretion afresh and found no realistic prospect of success on the costs appeal. Permission was refused on that issue.

All remaining applications were refused. The order was amended to provide for a deduction of £152,477.77 and a balance of £121,233.83.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1043, the appeal was allowed in limited part. The judgment sum was corrected to £121,233.83. Permission to appeal on costs was refused, and the applications to reopen earlier decisions were refused.
2. Queen’s Bench Division, Exeter District Registry: Royce J gave judgment for Mrs Pope in [2010] EWHC 96 (QB). The Court of Appeal amended his subsequent order dated 11 February 2010. Earlier refusals of permission and reopening applications in the same litigation were not reopened.