Tulip Trading Limited v Roger Ver

Permission to appeal, granted because an earlier decision has a real prospect of being wrong, does not itself establish a serious issue to be tried on the underlying claim. The two questions address different matters: one concerns the prospects of correcting the earlier decision on appeal, while the other concerns the merits of the claim.

A first-instance court should not defer judgment artificially to manage or protect proceedings in an appeal. The listing and management of related appeals belong to the appellate court. A court may grant permission and give directions concerning appeal notices, but should not otherwise obstruct the appellate court’s control of its own process.

The claimant sought to serve the 14th defendant, Roger Ver, out of the jurisdiction. The claimant had previously failed to establish a serious issue to be tried against other defendants, and the court had declined to extend that decision to Mr Ver because the claimant then maintained that his position was materially different.

After the Court of Appeal granted permission to appeal the earlier decisions, the claimant sought either to defer judgment on Mr Ver’s jurisdiction challenge, to reject the challenge on the basis that permission to appeal created a serious issue to be tried, or to extend the time for an appeal notice. The claimant later accepted that there was no material distinction between Mr Ver and the other defendants. The central issues were whether judgment should be deferred and whether permission to appeal altered the serious-issue analysis.

1. Application allowed. Mr Ver’s application to set aside the orders granting permission to serve him out of the jurisdiction was granted. The court followed its earlier decision because neither party relied on a material distinction or any other substantive point.
2. Permission to appeal does not establish a serious issue to be tried on the underlying claim. Permission indicates that the appellate court considers there to be a real prospect that the earlier decision was wrong. The serious-issue test concerns the merits of the underlying claim. The merits had not yet been reconsidered, and the earlier judgment therefore remained operative.
3. Derby & Co Ltd v Weldon & others (No 5) [1989] 1 WLR 1244 supported taking account of the possibility that an appellate decision might be reversed, but did not require the court to treat permission to appeal as proof of a serious issue to be tried. Johns v Solent SD Ltd [2008] EWCA Civ 790 concerned different circumstances and did not support the claimant’s proposition.
4. The court refused to defer judgment or extend time for an appeal notice to protect the related appeals from possible disruption. Appeal management was for the Court of Appeal. The first-instance court should not artificially delay judgment or preclude Mr Ver from seeking participation in the appeal.
5. Costs were ordered to be subject to detailed assessment. A payment on account of £95,000 was ordered. An escrow arrangement was refused; the risk of non-recovery was better reflected in the level of the payment.

The judgment records that the court had earlier upheld jurisdiction challenges by other defendants in [2022] EWHC 667 (Ch). The Court of Appeal subsequently granted permission to appeal those decisions. A stay application was dismissed by Master Clark in [2022] EWHC 2784. The present court granted Mr Ver’s application and granted permission to appeal on the same grounds as the Court of Appeal had permitted in the related appeals.