Lee Jon Booth v Lloyd Edward Hinton (as Liquidator of Active Ticketing Limited)

An appeal should not be struck out for a technical procedural default where the surrounding circumstances make that outcome unjust and the proposed appeal has a real prospect of success. The court should assess defaults in context, including whether court systems or other factors contributed to the failure. For a litigant in person, grounds of appeal should be construed pragmatically rather than over-technically. Where parties agreed a form of consideration for shares, there may be an arguable case that it was exclusive, so that failure to implement the agreed mechanism did not necessarily make cash payable instead.

The appellant, a founder and former CEO of Active Ticketing Limited, was ordered by ICCJ Prentis on 27 January 2023 to pay approximately £100,000 for shares allotted to him. The judge concluded that an intended mechanism involving the set-off of accrued liabilities for services had not been implemented, and that the subscription price therefore remained payable in cash.

The appellant sought to challenge that decision. Rajah J struck out the intended appeal on 18 December 2023 because an approved note or transcript of the judgment had not been filed in time. The appellant applied to set aside that order and sought permission to appeal. The central issues were whether the procedural default justified striking out the appeal and whether the proposed appeal had a real prospect of success.

1. The strike-out order was set aside. The appeal was restored, permission to appeal was granted, and time for filing a complete appeal bundle was extended to 5 March 2024, when the approved transcript became available. The appeal was directed to be listed before a High Court judge.
2. The justice of the case required relief from the procedural default. The court had to consider the overall picture, including earlier defaults, but those earlier matters had effectively been dealt with by previous orders. More importantly, the court recording system had failed, meaning that a transcript could not be prepared even after it was requested.
3. The appellant accepted that he should have acted more proactively after Rajah J’s order of 16 October 2023. However, he had reasonably believed that counsel were arranging an agreed note. In those circumstances, striking out the appeal for what was essentially a technical default would have been unfair and wrong.
4. The proposed appeal had a real prospect of success. If there had been an agreed mechanism or understanding that the shares would be paid for by setting off accrued sums due for services, there was an arguable case that this was the sole and exclusive form of consideration. It was therefore arguable that the lower court was wrong to conclude that cash became payable merely because invoices had not been issued.
5. The court could also consider whether the default could be cured by requiring invoices to be provided, particularly since the work had apparently been performed and the charges had accrued. The grounds of appeal were to be construed pragmatically because the appellant was acting in person. An agreement not to claim a debt can amount to consideration, as stated in Chitty on Contracts, 35th ed, paragraph 6-048.

• High Court, Chancery Appeals: The order of Rajah J dated 18 December 2023 striking out the intended appeal was set aside. The appeal was restored and permission to appeal was granted.
• High Court, Business and Property Courts: ICCJ Prentis gave an oral judgment on 27 January 2023 requiring payment of approximately £100,000 for unpaid shares.