Times Travel UK Ltd & Anor v Pakistan International Airline Corporation

A party should not obtain the practical effect of a stay by postponing consequential account-taking when no stay has been sought and the relevant information will be required whether or not the appeal succeeds. Where pleadings contain an unamended admission as to the basis of a quantum meruit, the account should proceed on that admitted basis. A party cannot replace the pleaded position with a different case in oral submissions or rely on expert evidence to determine an issue which has been admitted.

The claimants had obtained orders requiring accounts to be taken. The court had previously decided that Times Travel could avoid a new agreement on the basis of economic duress, subject to an appeal expected to be heard later in the year. The matter returned for directions concerning the accounts, including whether the Times Travel account should await the appeal and the basis on which its post-1 November 2012 quantum meruit should be assessed.

The central issues were whether postponement would improperly operate as a stay and whether the pleadings established an admission by the defendant as to the applicable measure.

1. The account should proceed. The taking of the Times Travel account was not postponed pending the appeal. No stay had been sought from either the Court of Appeal or the High Court. Postponement would have the practical effect of a stay, which the defendant could not obtain indirectly. In any event, the same basic ticket and remuneration data would be needed whether the appeal succeeded or failed, and an account for an earlier period was required in any event.
2. The admitted basis of the quantum meruit was binding for the account. The claimants’ account pleading asserted that the reasonable price for their services included NSR, as defined in that pleading. The defendant’s defence admitted that paragraph. Construed objectively, that was an admission that the account should proceed on the basis that Times Travel was required to pay the ticket price calculated by reference to NSR, so that any excess would be due to it.
3. The admission was substantive rather than merely technical. The pleadings were intended to clarify the issues. The defendant had not challenged the claimants’ approach, pleaded a positive alternative case, or applied to amend the admission. Oral submissions suggesting Revised NSR, or suggesting that expert evidence should determine remuneration, could not displace the pleaded admission. Expert evidence on agents’ remuneration was therefore irrelevant to the admitted basis.
4. Directions were to be made on that footing. The judge also observed that any amendment application would need to explain the proposed basis for assessment and, if expert evidence were relied upon, the substance of the proposed expert conclusions.

The judgment records that the court had previously ordered accounts following its main judgment. Times Travel had appealed the decision that it could avoid the new agreement on the basis of economic duress, with the appeal expected to be heard in October or November 2018. No stay application had been made. This judgment determined consequential directions and did not determine the appeal.