At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into court of the amount of the award, saying that the appellant did not otherwise have the assets within the jurisdiction. Floyd LJ so ordered. The court was now asked to address the principles by reference to which the Court of Appeal should determine such an application; and in particular to identify the principles by reference to which it should appraise a respondent’s contention that an appellant’s financial relationship with a wealthy third party is such as to defeat its complaint that such a condition would stifle its appeal.
Held: The appeal succeeded (Lords Clarke of Stone-cum-Ebony and Carnwath dissenting as to the effect) and the case remitted to the Court of Appeal to determine the appellant’s application for discharge of the condition by reference to the correct criterion.
Under Article 6 there will seldom be a ‘fair hearing’ if a court has permitted an appeal but then, by indirect means, does not permit him to bring it. It is for the appellant to establish on the balance of probabilities that a proposed condition would stifle the prosecution of its appeal. The courts can proceed on the basis that, were it to be established that the condition would probably stifle the appeal, the condition should not be imposed.
Judges:
Lord Neuberger, President, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hodge
Citations:
[2017] UKSC 57, [2017] WLR(D) 560, [2017] 1 WLR 3014, UKSC 2016/0039
Links:
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 20170427 am video
Statutes:
Civil Procedure Rules 52.9(1)(c), European Convention on Human Rights 6
Jurisdiction:
England and Wales
Citing:
At ChD – Goldtrail Travel Ltd v Aydin and Others ChD 22-May-2014
Claim by company liquidators against former directors alleging misappropriation of company assets, and dishonest assistance. . .
At CA – Goldtrail Travel Ltd v Aydin and Others CA 21-Jan-2016
Application for stay of execution of judgment pending appeal . .
Cited – Delcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
Cited – M V Yorke Motors v Edwards HL 1982
A sale of a second hand Rolls Royce had gone wrong. The plaintiff was claiming damages of 23,250 pounds. The plaintiff sought Order 14 summary judgment. That was refused, and the Master gave leave to defend without any conditions. The plaintiff . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Criticised in part – Hammond Suddard, Solicitors v Agrichem International Holdings Limited CA 18-Dec-2001
The appellant sought staying the order for him to pay costs pending the results of an appeal, and the respondent sought security for costs in fighting the appeal, and a striking out in default of payment, and for security for payment of the . .
Cited – Societe Generale SA v Saad Trading, Contracting and Financial Services Company and Another CA 23-May-2012
The Court was asked to determine applications by Societe Generale SA, which was the respondent to appeals which the two appellants had been permitted to bring against orders made against each of them for payment to the bank of US$49m. The first . .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Human Rights
Updated: 04 September 2022; Ref: scu.591358