Terna Energy Trading doo v Revolut Ltd

A lower court may grant permission to appeal after handing down judgment where its directions for written submissions on consequential matters amounted to a formal adjournment of the hand-down hearing. The permission threshold under CPR rule 52.6 requires a prospect of success which is not unreal; it does not require probability of success. Conflicting first-instance authority on important points of law may satisfy that threshold, particularly where appellate clarification is needed. Counsel’s unavailability alone is not generally a good reason to extend the time for filing an appellant’s notice. A case management conference may be listed conditionally, so that it is vacated if an appellant’s notice is filed.

The defendant applied for permission to appeal the dismissal of its application for reverse summary judgment or, alternatively, strike out, given in [2024] EWHC 1419 (Comm). The proposed appeal concerned whether the defendant was enriched and whether any enrichment was at the claimant’s expense.

After inviting written submissions on consequential matters, the court determined costs, permission to appeal, time for filing the appellant’s notice and listing of a case management conference. The claimant argued that the court lacked jurisdiction to grant permission because no formal adjournment had been ordered at hand-down. The defendant sought permission and a time extension.

1. Jurisdiction. The court had jurisdiction to determine the application for permission to appeal. CPR rule 52.3(2)(a) restricts a lower court’s power to grant permission to an application made at the decision hearing or an adjournment of it. The direction for unrestricted written submissions on consequential matters amounted, in substance, to an adjournment of the hand-down hearing to a written procedure, even though express words of adjournment were not used.
2. Permission to appeal. Under CPR rule 52.6, a first appeal may proceed where there is a real prospect of success or another compelling reason. A real prospect means a prospect which is not unreal, rather than a probability of success. Both proposed grounds met that threshold because they raised legal questions on which first-instance authority was divided, and appellate clarification was important given the frequency and practical significance of fund transfers. Permission was therefore granted on both grounds. It was unnecessary to decide whether there was also a compelling reason.
3. Extension of time. The application to extend time for filing the appellant’s notice was refused. Counsel’s existing commitments or unavailability during the initial 21-day period did not, without more, constitute a good reason, particularly where preparation could be undertaken by other instructed counsel.
4. Case management. A half-day CCMC was directed to be listed on the first available date after 28 days, subject to vacation if an appellant’s notice was filed by 3 July 2024.
5. The agreed costs order was made, requiring payment of £50,000 within 14 days.

The judgment records that the court had previously dismissed the defendant’s application for reverse summary judgment or strike out in [2024] EWHC 1419 (Comm). This judgment dealt with consequential matters arising from that decision.