Bendon Media Ltd (t/a Picture Canning Company) v Nywave Ltd & Anor

LORD JUSTICE RIX: This is an application made by Mr Neil Mackenzie for a stay in enforcement of the order that has been made against him at trial by Miss Recorder Miller QC. Her judgment found that Mr Mackenzie was personally liable in respect of a contract made with the claimant Bendon Media Limited and that he should therefore pay the price of goods sold and delivered to him in the amount of some £33,000, plus an interim payment of £5,000 on account of costs. Mr Mackenzie has applied for permission to appeal and obtained that permission from Sir Henry Brooke on paper. I do not go into the merits of that appeal for the purposes of this application, save to underline what I have already stated, which is that Mr Mackenzie has obtained permission to appeal and he has done so in a contract case in which the complaint on appeal is that the judge has adopted an analysis of the contractual situation which was different from that promoted at trial by the claimant and which also involves an issue of construction.

Sir Henry Brooke went on to say in giving permission to appeal on paper that so far as Mr Mackenzie’s application for the grant of a stay was concerned that would have to be heard on notice to the respondents, and that evidence would be required from Mr Mackenzie as to his financial position. That evidence has come forward in the way of a witness statement, although it has come forward only at the last moment. In his witness statement Mr Mackenzie says that he cannot pay but has hopes of doing so as a result of a business project which he hopes will come to fruition in the spring of this year. He says that he does not own the house in which he lives. He rents that. He gives details of his possessions. He is sufficiently frank to say that nevertheless he maintains two children at private schools but as for his financial circumstances, among which is the question of how he manages to pay those school bills, his witness statement is certainly opaque and amounts to saying -- see his paragraph seven -- that he is “living from day to day by selling the odd item either of a commercial nature or personal nature and with loans from members of my family”. As Mr Hatt, who appears on behalf of the respondents today, submits, that is not the full frank and candid evidence which is necessary on these occasions -- see the judgment of Clarke LJ in this court in Hammond Suddard Solicitors v Agrichem International Holdings Limited [2001] EWCA Civ 2065 at paragraph 13.

Mr Hatt also observes that Mr Mackenzie’s financial difficulties do not prevent him from instructing solicitors and counsel for the purposes for instance of today’s application. Mr Hatt submits that the general rule in this court is that a stay will not be granted -- see Leicester Circuits Limited v Coates Brothers Plc [2002] EWCA Civ 474 at paragraph 12, albeit the court has otherwise an unfettered discretion in this respect and also in respect of conditions in respect of stay -- see Hammond Suddard Solicitors generally and also the note in Civil Procedure at 52.7.2.

In the circumstances I have to do the best I can. There is an appeal in good standing. It will be heard later this year, within at most some four months or so. The amount at issue is some £30,000 plus costs, not a huge sum of money as commercial litigation goes but nevertheless here a judgment against a personal individual without a house to support his resources. Nevertheless, the judge at trial had harsh conclusions to reach about Mr Mackenzie’s business honesty and his evidence before me is far from satisfactory. On his behalf Mr Parsons admits in effect that whereas the evidence before me concerns his capital resources, there is little before me so far as explanation of his income is concerned and how he lives and supports the education of his children. One clue that his witness statement does give is that he is able to some extent at any rate to call upon loans from members of his family.

I have to do the best I can in the circumstances. It seems to me that I should be concerned not to stifle Mr Mackenzie’s appeal but that on the other hand I do have an insufficient understanding of the total means of income which is available to him. I am not attracted by Mr Hatt’s alternative submission, that I should impose a new condition upon the permission to appeal which has been granted, pursuant to CPR 52.9.1(c) and 52.9.3.

I have taken account of all the matters which have been put before me by counsel on either side and also with the matters discussed in the Hammond Suddard Solicitors and Leicester Circuits cases. It seems to me that I may be doing justice to the parties if I do not put any stumbling block in the way of the earliest possible hearing of this appeal and only grant a stay on execution, which I am willing to do on condition that Mr Mackenzie pays into court the sum of £20,000. I will hear counsel on time to make that payment into court but that is my decision.