JD Wetherspoon Plc v Stephenus Bernadus Burger & Anor (Consequential matters)

Where an order is set aside on appeal, sums paid under that order must be repaid. The court may award interest on those sums from the date of payment until repayment. The rate should reflect a realistic commercial return, having regard to the benefit retained by the recipient. A bare assertion of irreparable harm does not justify delaying repayment pending a possible further appeal, particularly where permission for a second appeal has not been granted. Repayment should ordinarily be ordered against the party who received the benefit of the judgment, even if solicitors held the money on that party’s behalf.

The judgment determined consequential matters following the court’s judgment of 21 May 2025, which allowed JD Wetherspoon Plc’s appeal on Grounds 1, 2, 3 and 5 and set aside the order of Mr Recorder Shepherd dated 20 September 2023. Under that order, JD Wetherspoon had paid damages and costs totalling £188,698.24 to solicitors acting for Mr Burger.

The parties disputed the date and rate of interest on repayment, whether repayment should be delayed to preserve the position pending a possible second appeal, and whether the repayment order should be made against Mr Burger’s solicitors rather than Mr Burger himself.

1. Interest. The court had power to award interest where an order was set aside on appeal and money paid under it had to be repaid. The recipient had enjoyed the benefit of the money. A rate reflecting commercial reality was appropriate. Following the approach in Multiplex Construction Ltd v Cleveland Bridge Ltd [2008] EWCA Civ 133, the court fixed interest at 6% per annum from 10 October 2023, or the relevant date of payment for any tranche, until repayment.
2. Timing of repayment. A partial stay was refused. Mr Burger had provided no evidence supporting his assertion that earlier repayment would cause irreparable harm. A possible second appeal did not justify delay where permission had not been sought or granted. Under CPR r. 52.7, a second appeal required permission from the Court of Appeal and the threshold was high. The timetable proposed by JD Wetherspoon was appropriate.
3. Proper defendant to the repayment order. The repayment order was made against Mr Burger alone. He was the recipient of the benefit of the original judgment and the underlying liability was his. Although his solicitors held some funds, they held them on his behalf and were not liable to repay them personally.
4. Mr Burger was ordered to repay £188,698.24, with interest at 6% per annum until repayment, and to pay JD Wetherspoon’s costs of the claim and appeal on the standard basis, not to be enforced without further order.

• High Court (King’s Bench Division): On 21 May 2025, JD Wetherspoon’s appeal was allowed on Grounds 1, 2, 3 and 5, and the order of 20 September 2023 was set aside.
• High Court (King’s Bench Division): In this consequential judgment, repayment, interest, timing, liability and costs were determined.