National Iranian Oil Company v Crescent Petroleum Company International Limited & Anor.

Once a first-instance court has granted unconditional permission to appeal, it cannot subsequently impose conditions on the grant. Any later application to impose or vary conditions falls within the appeal court’s jurisdiction under CPR 52.18.

Before an order is sealed, the court retains a limited jurisdiction to reconsider its decision. The applicant must show factors sufficiently weighty to overcome the fundamental principle of finality and satisfy the overriding objective. A delayed application, made after extensive opportunities to raise the issue, will ordinarily fail, particularly where the alleged later developments do not materially change the case.

The claimant had challenged an arbitral award under section 67 of the Arbitration Act 1996. In an earlier judgment, [2022] EWHC 2641 (Comm), the court summarily dismissed that challenge and subsequently granted permission to appeal on four grounds.

The defendants had opposed permission but did not ask for conditions requiring payment of the relevant part of the award into court. After permission had been granted, they applied for the grant to be made conditional on such payment, relying on alleged asset dissipation, obstruction and later developments. The central issues were whether the first-instance court could reconsider unconditional permission before the order was sealed and, if so, whether the circumstances justified doing so.

1. The application for a condition on permission to appeal was refused.

2. Under CPR 52.6(2), conditions may be imposed when permission is granted. However, once unconditional permission has been granted by the first-instance court, the rules do not permit that court to impose conditions retrospectively. The power to impose conditions upon which an appeal may be brought lies with the appeal court under CPR 52.18(1)(c). The court applied the reasoning in Goldtrail Travel Limited v Onur Air Tasimacilik [2017] UKSC 57.

3. The defendants’ application was properly characterised as an application to reconsider the unconditional permission, rather than as a mere addition of conditions. The principles in AIC Limited v Federal Airports Authority of Nigeria [2022] 1 WLR 3223 applied. The court had to act in accordance with the overriding objective, but finality was of fundamental importance. The question was whether the factors favouring reopening were sufficient to overcome the substantial weight against alteration of the decision.

4. The defendants had extensive opportunities before the ruling on permission to raise the possibility of conditions. They had no good reason for failing to do so. The policy underlying CPR 52.18(3), as explained in Spar Shipping v Grand China Logistics Holdings (Group) Co. Limited [2016] EWCA Civ 520, strongly militated against reopening the ruling because the delay caused further costs and delay.

5. The matters relied on as subsequent developments formed part of a continuing case about the claimant’s conduct and could have been deployed earlier. They would not have transformed the application. The finality principle therefore outweighed the alleged developments. The court noted that a true change of circumstances could be addressed by an application to the Court of Appeal under CPR 52.18(1), or potentially by seeking a freezing order.

High Court (Commercial Court): In [2022] EWHC 2641 (Comm), the court summarily dismissed the claimant’s section 67 challenge and later granted permission to appeal on four grounds. The present application to make permission conditional was refused.