WILLIAM ANDREW TINKLER v ESKEN LIMITED (formerly STOBART GROUP LIMITED)

Permission to appeal should be refused where the proposed grounds have no real prospect of success and no other compelling reason supports an appeal. Finality in litigation is a compelling consideration. A claim seeking to set aside a judgment for fraud must be tried by reference to the pleaded allegations and the applicable fresh-evidence principles; it is not an opportunity to relitigate the original case on substantially the same evidence. Indemnity costs may be ordered where the conduct or circumstances are outside ordinary and reasonable litigation conduct. Serious, unsuccessful allegations of dishonesty and a disproportionate second claim may take a case out of the norm, although there is no general rule that unsuccessful fraud allegations automatically attract indemnity costs. A party may be held to an agreement on consequential matters, including costs and interest, absent good reason to reopen it.

The claimant sought to set aside a judgment of His Honour Judge Russen QC dated 15 February 2019. On 7 June 2022 the court dismissed that claim: [2022] EWHC 1375 (Ch). This consequential judgment concerned permission to appeal, the basis of assessment of costs, interest on costs, a stayed conspiracy claim and an application to stay an interim costs payment.

The claimant argued that the court had adopted the wrong legal approach to fresh evidence, credibility, materiality and the earlier authorities. The defendant sought indemnity costs and enforcement of the parties’ agreement on interest and payment on account. The central issues were whether permission should be granted, whether the claim was outside the norm for costs purposes, and whether the agreed consequential order could be reopened.

1. Permission to appeal refused. None of the six proposed grounds had a real prospect of success, and no other compelling reason justified permission. Finality in litigation was itself a compelling reason to refuse permission.
2. The challenge to the approach under Takhar v Gracefield Developments Ltd had no real prospect of success. The claim had been tried by reference to the pleaded allegations, which failed in their entirety, and the court had applied the law stated in Takhar. The Highland principles supported evaluating the fresh evidence and asking whether, in its light, the first judge’s findings could stand. The alternative approach of rehearing the original issues afresh was considered unworkable.
3. The challenge to the treatment of Coghlan v Bailey failed. That authority had not been followed without qualification, and the findings made by reference to it were not determinative because there was no evidence of fraud. The threshold for overturning a trial judge’s findings of fact on appeal was high.
4. Indemnity costs ordered. The court declined to decide whether Clutterbuck and Paton v HSBC plc was wrongly decided or whether a general practice existed for unsuccessful fraud allegations. The correct question was whether the conduct or circumstances were out of the norm. Bringing a second claim involving serious allegations of perjury, non-disclosure and destruction of documents, which failed comprehensively and included allegations that should have been withdrawn earlier, justified indemnity costs. The court also relied on the disproportionate nature of the claim under CPR Part 44.3(2)(a).
5. The parties’ agreement on interest and the timing of the interim payment was binding, or should be enforced as a matter of case management. CPR Part 1.3 required parties to assist the court by agreeing consequential matters and not reopening them without good reason.
6. The conspiracy claim was not dismissed because its stay continued until the Court of Appeal finally determined any appeal. The application to stay the interim costs payment was not entertained because it was late and the claimant had agreed to the order. The final order dismissed the claim, required indemnity costs, required payment of £1,689,490 on account, gave effect to the agreed interest provisions, and recorded refusal of permission to appeal.

High Court (Business List): The claim to set aside the earlier judgment was dismissed in [2022] EWHC 1375 (Ch). In the present consequential judgment, permission to appeal was refused and consequential orders were made.

The stayed conspiracy claim remained stayed pending exhaustion of the relevant appeal process.