Michael Wilson & Partners Ltd v Sinclair

This is an appeal by Michael Wilson & Partners Limited (“MWP”) from the order of 7 October 2015 of Whipple J. By her order the judge dismissed an appeal by MWP from the order of 9 June 2015 of Master Yoxall granting to Mr Thomas Ian Sinclair (“TIS”) a stay of execution of an order of 19 October 2014 of Master Eyre registering certain judgments in favour of MWP against TIS under the Administration of Justice Act 1920. Permission to bring this second appeal was granted by Floyd LJ by order of 25 November 2015.

The registered orders were orders relating to costs of proceedings between the parties in the Bahamas. The proceedings had been brought by TIS against MWP seeking declarations as to the beneficial ownership of shares. The proceedings were unsuccessful in the sense that they were stayed/struck out, on jurisdictional grounds, in the face of MWP’s contention that jurisdiction should properly be in England and Wales where related arbitration proceedings were under way, whereas (as it was submitted) the Bahamian proceedings were simply contrived in order to bring the dispute into that forum. As the judge recorded in her judgment, the registered orders included a certificate of taxation (assessment) of costs in the sum of approximately US$250,000; the remainder of the costs were in dispute and were awaiting taxation.

The present appeal is merely one episode in a long saga of arbitration and litigation that has been proceeding in various jurisdictions for a number of years. The judge sets out a helpful summary of the salient features of the matter in paragraph 4 of her judgment ([2015] EWHC 2847 (QB)) as follows. (In this passage the judge refers to Master Eyre’s order as “the Registration Order”):

“a)

In June 2006, a Mr John Emmott (not a party to this appeal, but an individual who features in the underlying events) terminated his relationship with MWP, a law firm which operates in Almaty, Kazakhstan.

b)

In August 2006, MWP initiated an arbitration in London against Mr Emmott, claiming that Mr Emmott had made a secret profit in relation to certain shares in a company called Max Petroleum Plc (the “Max shares”), which MWP contended belonged to it. A freezing order was obtained by MWP over Mr Emmott’s assets, including the Max shares. MWP gave an undertaking in damages as condition of the freezing order.

c)

Although the freezing order related to Mr Emmott’s assets, and Mr Emmott was the registered holder of the Max shares, it was TIS’ contention that he, TIS, was the beneficial owner of the Max Shares [sic] (a contention which I understand was accepted in the arbitration, by means of the Second Interim Award released in February 2010). Therefore, the freezing order impacted significantly on TIS who was unable to dispose of or otherwise deal with the Max shares while they were the subject of it. For that reason, I am told TIS funded Mr Emmott’s legal costs in the arbitration (although he was not a named party to the arbitration), and involved himself in other aspects of the broader litigation against MWP.

d)

In October 2006, TIS commenced proceedings in the Bahamas to confirm his ownership of the Max shares. MWP challenged the jurisdiction of that action, suggesting that the appropriate jurisdiction was England, where the arbitration was underway. In the end, TIS failed to establish jurisdiction in the Bahamas and the Bahamian action was struck out. The Bahamian costs orders which are the subject of the Registration Order relate to this piece of litigation.

e)

Meanwhile, the arbitration progressed in London. The panel consisted of Lord Millett, Christopher Barry and Valerie Davies. MWP was unsuccessful in the arbitration. In September 2014, the panel determined quantum in favour of Mr Emmott, awarding him a substantial amount of damages, together with his costs of the arbitration (I am told that his costs had in fact been funded by TIS). The costs have yet to be quantified. Nothing has been paid.

f)

In October 2010, MWP commenced a separate action in the High Court, seeking a declaration that the Max shares were owned beneficially by MWP and not TIS (the “Max action”). The Max action was struck out with costs, as an abuse of process given that the arbitration had already determined the issues now raised by MWP in the Max action. Costs orders in TIS’ favour were made. Those costs have yet to be quantified on detailed assessment. An appeal against strike out is currently pending before the Court of Appeal, due to be heard November 2016. The costs of the Max action are therefore at large, at least until that appeal is determined.

g)

Meanwhile, on 17 October 2010, the freezing order in MWP’s favour was discharged.

h)

TIS seeks to enforce the undertaking in damages given by MWP. He has permission from the Commercial Court to proceed with any enquiry. TIS will contend in that enquiry that he has sustained loss and damage consequent on the freezing order, including (i) the loss of value of the Max shares which are now worth substantially less than they were at the time of the freezing order in 2006; and (ii) the costs associated with the Bahamian proceedings which were initiated by TIS to establish TIS’ ownership of the Max shares. (Permission was originally granted on condition that TIS abandoned his counter claim in the Max action. I am told that TIS has now done that.) ”

Master Yoxall, we understand, granted the stay of the registration order on the basis that the underlying costs orders were not freestanding but formed part of what I have described as the “saga” which had at its core the dispute as to the beneficial ownership of the Max shares. That was a dispute which MWP had lost in the arbitration in which the assertion by Mr Emmott that TIS was the beneficial owner of the shares had been successful. Substantial amounts of costs (in significant part originally funded by TIS) and damages had been ordered against MWP in the arbitration and there were arguable claims in damages arising out of the freezing order which had been granted subject to the usual cross-undertaking in damages. If the Bahamian costs orders were paid to MWP, the Master held, there was a fear that the sums would be dissipated without meeting the significant liabilities of MWP outstanding from the arbitration proceedings. Thus, the Master granted the stay of execution sought.

MWP appealed to the judge and argued, first, that the court had no discretion at all to grant a stay of execution of the order, once the time had expired in which to apply to set aside the registration; alternatively, the Master had erred in exercising his discretion in granting a stay. The judge dismissed the appeal. She found that there was a discretion to order a stay of execution. The judge considered that once the judgments became registered as English judgments the court had the powers that were available to it to stay those judgments, just as it has power to stay any judgment granted in domestic proceedings. That power arose, in her view, under CPR 3.1(2)(f) which conferred a broad discretion. She referred to the notes in Civil Procedure Vol. 1 at paragraph 3.1 where it is said that the court has an inherent jurisdiction to stay the whole or any part of the proceedings.

The judge did not accept the proposition that the Master’s discretion was governed by CPR 83.7 and that accordingly “special circumstances” had to be shown “which render it inexpedient to enforce the judgment” or that that rule together with CPR 40.8A set out the only circumstances in which a money judgment could be stayed. The judge’s view was that the general discretion under CPR Part 3 applied. In the event that she was wrong about that and she had, therefore, to exercise the discretion under CPR 83.7 herself, the judge’s view was that there were sufficient special circumstances in this case to warrant the grant of the stay sought.

On the present appeal, it is argued for MWP that the judge was wrong to hold that the relevant discretion arose under CPR 3.1(2)(f) and that she ought to have concluded that CPR 83.7 was the relevant provision. It is further submitted that the judge was wrong to hold that a stay should be granted, whichever of the two provisions applied. MWP does not pursue the point, argued before the judge, that there was no discretion left in the court to grant a stay once the period for applying to set aside the registration, as provided for in the registration order itself, had expired.

The relevant provisions of the rules, therefore, are (omitting immaterial parts) CPR 3.1(1) and (2)(f), 40.8A and 83.7(1), (4) and (5). These rules provide as follows:

“(1)

The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2)

Except where these Rules provide otherwise, the court may –…

(f)

stay the whole or part of any proceedings or judgment either generally or until a specified date or event;…

40.8A Stay of execution and other relief

Without prejudice to rule 83.7(1), a party against whom a judgment has been given or an order made may apply to the court for—

(a)

a stay of execution of the judgment or order; or

(b)

other relief,

on the ground of matters which have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms, as it thinks just.

83.7

Writs of control and warrants – power to stay execution or grant other relief

(1)

At the time that a judgment or order for payment of money is made or granted, or at any time thereafter, the debtor or other party liable to execution of a writ of control or a warrant may apply to the court for a stay of execution…

(4)

If the court is satisfied that— ”

(a)

there are special circumstances which render it inexpedient to enforce the judgment or order; or

(b)

the applicant is unable from any reason to pay the money,

then, notwithstanding anything in paragraph (5) or (6), the court may by order stay the execution of the judgment or order, either absolutely or for such period and subject to such conditions as the court thinks fit.

(5)

An application under this rule, if not made at the time the judgment is given or order made— ”

(a)

must be made in accordance with Part 23, as modified by paragraphs (6) to (14); and

(b)

may be made even if the party liable to execution did not acknowledge service of the claim form or serve a defence or take any previous part in the proceedings.”

The judge’s view of r.83.7 and 40.8A was this:

“22.

In relation to CPR 83.7, the first and important point is that it only applies where the judgment debtor or other party is liable to execution of a writ of control or a warrant (see CPR 83.7(1)). In those circumstances, that party can apply to the Court for a stay of execution, and must demonstrate “special circumstances” justifying a stay. I can readily understand the argument (without reaching any conclusion on it) that once a writ of control or warrant is issued by the judgment creditor, the narrower discretion in CPR 83.7 should apply with exclusive effect, because it is specific to that situation. But MWP has not issued any writ of control or warrant. So that argument does not run. In my judgment, CPR 83.7 does not apply on its plain terms.

23.

Further, I do not accept that the rules require a judgment debtor to wait until active steps are taken by the judgment creditor to enforce the debt, by issuing a writ of control or warrant, before he is entitled to come to Court to seek a stay under CPR 83.7. The better analysis is that the judgment debtor can come to Court, even where no steps have been taken towards enforcement by the judgment creditor, and seek a stay under CPR 3.1. Where the stay is granted depends on all the facts and circumstances of the case: it is a matter of discretion.

24.

CPR 40.8A gives the judgment debtor the right to come to Court to seek a stay of execution on the basis of “matters which have occurred since the date of the judgment or order” in which case the Court can grant such relief on such terms as it thinks just. But that was not the basis on which TIS put his application, and the application notice did not indicate what, if any, matters had arisen since the date of the Registration Order (which was the Order cited in the application notice) which might justify a stay. Rather, the factors relied on by TIS related to the wider picture of unfolding litigation, including the outcome of the arbitration, which pre-dated the Registration Order. I do not consider that the existence of CPR 40.8A precludes an application for a stay under CPR 3.1(2)(f). These are complementary provisions. In any event, TIS’ application to the Master did not, on the facts, fit the precondition for exercise of discretion under CPR 40.8A.”

Mr Samek QC for MWP argues that the judge was wrong in her view of rule 83.7. He submits that the rule applies in all cases of money judgments. He submits that the words, “liable to execution of a writ or a warrant” apply to the words “other party” and not to “the debtor” since the latter is always liable to such execution. Secondly, it is argued that the issue of the writ or warrant is not the pre-condition of an application under the rule because the rule itself provides that an application can be made at the time when the judgment or order is made: see paragraphs (1) and (5) of the rule. In such circumstances, by definition, the writ or warrant will not have been issued.

It is further argued by Mr Samek that rule 3.1(2)(f) could not apply because rule 83.7 applies from the date of the judgment (see above) and it cannot be right that different tests should apply under the two rules. There would be no reason, if that were the case, why a debtor should invoke rule 83.7 and subject himself to the more rigorous requirement of showing “special circumstances”. Further, rule 3.1 (2) begins with the words, “Except where these rules provide otherwise…” and, says Mr Samek, rule 83.7 does provide otherwise in the present circumstances.

Mr Sinclair (TIS) has not advanced any further submissions of his own as to the proper construction of the rules, other than to rely upon the reasoning of the judge which he submits we should uphold.

For my part, I find myself broadly in agreement with the argument of Mr Samek for MWP on this point. I think that he is right that rule 83.7 was the relevant rule in this case. It seems clear to me that, for this rule to apply, it is not necessary for there to have been any writ of control or other warrant issued. The rule clearly applies from the moment of the making of the judgment or order for the payment of money. That is a result of its express words. I think that the words “the debtor or other party liable to execution of a writ of control or warrant” are descriptive of the persons who can apply for a stay of execution under the rule, rather than setting a time at which the possibility of an application begins. Frequently, in debt proceedings, after delivery of judgment the court will proceed to consider questions of time for payment and instalment payment options; it would be inconvenient if the power to suspend execution had to wait until enforcement process was issued.

In argument we explored the question of the meaning of the words “other party liable to execution” in rule 83.7 and, while the issue does not arise in this case, it seems to me that the rule is seeking to afford an opportunity to other persons who may be prejudicially affected by the potential execution, for example a person who might claim an interest in a chattel apparently the property of the judgment debtor. If this is right, of course, such a person is neither a party nor truly liable to execution, but the provision would make sense if so read. One can foresee cases where a family member of a judgment debtor might wish to assert that he or she is the true owner of a motor car or other valuable item that might appear available for execution by a writ of control directed to the debtor. Although the same words appeared in the predecessor to CPR 83.7, namely RSC Order 47 rule 1, we were not taken to any authority elucidating the meaning of the words in question.

I think also that the debtor can apply for a stay of execution generally under this rule, whether that anticipated execution be by way of writ of control or by other means, for example by third party debt order, attachment of earnings, sequestration or charging order. Indeed, I see no reason why (in appropriate circumstances) a court should not impose a general stay of execution under this rule, such as would in practice prevent the pursuit of bankruptcy proceedings, similar to the grant of a general stay pending an appeal: see the notes under “Stay of execution and bankruptcy petitions” in Civil Procedure 2016 Vol. 1 paragraph 83.7.7. My view in this respect is fortified by the fact that the power to stay execution under CPR 87.3 is not on its face confined to writs of control or warrants: c.f. the old Order 47 rule 1 which was expressly confined to execution by fi. fa: see below.

It seems to me, therefore, that Mr Samek is correct in his argument that rule 83.7 “provides otherwise” so as to preclude the operation of rule 3.1(2)(f) in the case of money judgments. The jurisdiction nonetheless exists (in relatively broad terms) to grant a stay in the light of circumstances that have occurred since the date of the judgment or order in issue. However, the court would be likely, in my view, to have regard to the test that applies in respect of money judgments generally under rule 83.7.

It is perhaps of interest to note the provenance of these provisions of the rules. Rule 83.7 derives from RSC Order 47 rule 1 which was in these terms:

“47/1 1.-(1) Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time if the judgment or order, or at any time thereafter, by the judgment debtor or other party liable to execution-

(a)

that there are special circumstances which render it inexpedient to enforce the judgment or order, or

(b)

that the applicant is unable form any cause to pay the money,

then, notwithstanding anything in rule 2 or 3, the Court may by order stay the execution of the judgment or order by writ of fieri facias either absolutely or for such period and subject to such conditions as the Court thinks fit.

(2)

An application under this rule, if not made at the time the judgment is given or order made, must be made by summons and may be so made notwithstanding that the party liable to execution did not acknowledge service of the writ or originating summons in the action or did not state in his acknowledgment of service that he intended to apply for a stay of execution under this rule pursuant to Order 13, rule 8.

(3)

An application made by summons must be supported by an affidavit made by or on behalf of the applicant stating the grounds of the application and the evidence necessary to substantiate them and, in particular, where such application is made on the grounds of the applicant’s inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.

(4)

The summons and a copy of the supporting affidavit must, not less than 4 clear days before the return day, be served on the party entitled to enforce the judgment or order.

(5)

An order staying execution under this rule may be varied or revoked by a subsequent order.”

Interestingly, as I have said, that rule clearly only enabled the grant of stay of execution by writ of fi. fa. and not execution by other means. The present rule is not so limited.

In the circumstances, therefore, I find that the judge was wrong in holding that the relevant provision of the rules in this case was CPR 3.1(2)(f). She should have held that the court’s discretion arose under CPR 83.7. Accordingly, in this case, the court had to be satisfied under rule 87.3(4)(a) that there were “special circumstances which render it inexpedient to enforce the judgment or order”; it was not argued that paragraph (b) applied.

The judge found, in the section of her judgment headed “Alternative Conclusion” that special circumstances were present justifying the grant of a stay. Her reasoning is to be found in paragraphs 30 to 36 of her judgment as follows:

“30.

The key feature of this case is the complex web of litigation which surrounds this application for stay. The signal event to date has been MWP’s claims touching on the Max shares, which failed in the arbitration. It is important to hold the ring while the various aspects of the post-arbitration “mop up” are completed. To do otherwise would permit an unfair advantage to accrue to MWP, who would be able to “steal a march” on TIS.

31.

In that context, I accept that TIS has at least three bases on which he might secure money from MWP pursuant to a Court order in the future (I put it no higher than “might”):

a)

By means of the costs orders in favour of Mr Emmott in the arbitration (on the footing that TIS funded the arbitration, TIS can expect to recover some at least of his outlay);

b)

By means of the enquiry as to damages (if indeed it is established that the freezing order caused loss and damage in relation to the Max shares of which TIS was the beneficial owner; alternatively, if it is shown that the Bahamian proceedings were an incident of the freezing order such that the Bahamian costs orders should now be recovered as part of those damages);

c)

By means of the domestic costs orders in TIS’ favour. Although there is an appeal outstanding in the Max action, and so costs are still at large, TIS has costs orders in his favour and could proceed to assessment of them.

32.

There is plenty of litigation to come. But the prospect of recovery by TIS is not mere “speculation”. Each of these bases is connected with MWP’s claim over the Max shares. The prospect of recovery for TIS is real.

33.

Specifically, in relation to the Bahamian costs orders, it is to be noted that they are themselves the subject of the damages claim against MWP. For that reason, if no other, it would be preferable, as matters stand, to wait and see whether those costs are recouped as damages in due course, rather than ordering them to be paid now.

34.

I was told that Mr Emmott has a worldwide freezing order in place against MWP, and that any costs which are paid to MWP would get caught by that freezing order, in any event. This factor lends support to the conclusion that it would be better to stay the enforcement of the Bahamian costs orders, rather than risk wasting time recovering costs which would then simply become subject to a freezing order in Mr Emmott’s favour.

35.

Further still, I was told that MWP has not taken any steps to enforce the Bahamian orders against TIS within the jurisdiction, because TIS has no assets within the jurisdiction. So long as that remains the case, a stay will not prejudice MWP, nor will it create any injustice.

36.

More broadly, I reject the proposition that the Bahamian costs orders (assuming they are not recouped as damages in the enquiry) would not be the subject of possible set off against orders for costs or damages going the other way. I was shown Fearns (T/A Autopaint International) v Anglo-Dutch Pain and Chemical Co Ltd [2010] EWHC 2366 (Ch). That case demonstrates that there is a discretion to order set off between different liabilities in respect of damages or costs, in accordance with what the Court considers to be just in the particular circumstances (see para 75). The Court may well have to address set off in due course, and it cannot be said (as Mr Samek argues) that there is no likelihood of set off involving the Bahamian costs orders at the end of the day.”

Mr Samek argues that the judge failed to take account of a number of material factors, in summary as follows: TIS has not applied in the Bahamas to challenge or stay execution of the orders; there were and are ongoing proceedings for the taxation of the untaxed costs in the Bahamian litigation; TIS had sought to stay the outstanding taxations in the Bahamas but that had failed; TIS had not explained why he did not seek to challenge the registration order in this country within the period allowed for such a challenge; and he had not suggested that he had assets in this country against which immediate enforcement was feared. I summarise paragraph 67 of MWP’s skeleton argument.

Mr Samek argues that this was a case where each party should be required to pay costs ordered to be paid by them on a “pay as you go” basis and that there was no reason here to hold up enforcement of costs ordered to be paid by TIS. He argues a number of points which, he submits, support or reinforce that view of the matter.

First, TIS had deliberately not participated in the arbitration proceedings in England and so should not be treated as interested in the “mop up” of that matter; secondly, the inquiry as to damages relied upon by the judge as potentially yielding fruit to TIS was unlikely to produce anything for TIS: he had not been a subject of the freezing order and, in any event, under that order a disposal of shares was permissible provided suitable notice (5 days) was given to MWP. (Thus, the judge’s summary of proceedings was wrong on this point in paragraph 4(c) quoted above); thirdly, the costs order in favour of Mr Emmott in the arbitration should not have been treated as a potential “receivable” of TIS; fourthly, the potential for the payment of costs pursuant to the order of Teare J should have been ignored as the costs were unassessed and the order was under appeal; fifthly, the prospect of “plenty of litigation to come” was immaterial; sixthly, the prospect of the Bahamian costs liabilities being recoverable under the inquiry as to damages was illusory; seventhly, and in contradistinction to the judge’s statement in paragraph 4(d) of her judgment, that the Bahamian proceedings had failed because TIS had “failed to establish jurisdiction” was a misnomer as in reality the Bahamian proceedings had been wholly “contrived and misconceived”; eighthly, the stay order amounted to unequal treatment and contrary to the overriding objective of the CPR; ninthly, the judge was wrong to take into account the existence of the freezing order in favour of Mr Emmott and the prospect of any payment made by TIS being caught by that order.

In his oral argument, Mr Samek relied upon a decision of 13 June 2016 of the Court of Appeal in New Zealand (Harrison, Lang and Toogood JJ) in enforcement proceedings between these same parties in which the court had allowed an appeal from an order of Mallon J refusing an application to execute these same Bahamian judgments which had been duly registered in New Zealand: see [2016] NZCA 376.

The judgment turned to a significant extent upon the precise application and interaction of section 56 of the New Zealand Judicature Act 1908, relating to the enforcement of judgments given in Her Majesty’s Dominions and the general jurisdiction to grant stays of execution under rule 17.29 of the New Zealand High Court Rules. The court found that the general discretion under the rules did not apply, but it went on to consider the situation if it were wrong about that. It considered the judgment of Whipple J in the present proceedings and the factors that she had found to militate in favour of the grant of a stay. In contrast to the decision of Whipple J, the New Zealand Court of Appeal, in a judgment delivered by Harrison J, said this:

“[35] We approach the issue from a different perspective. The Bahamian orders are, we repeat, final, binding and conclusive between the parties, relating solely to litigation in that forum. The costs awards were made there without any substantive adjudication upon the merits of the Max shares dispute. They were made because Mr Sinclair abused the process of the Bahamian courts to invoke a jurisdiction which did not exist. That conclusion and Mr Sinclair’s liability for the costs awarded in the Bahamas are now beyond challenge.

[36] In our judgment the possibility of Mr Sinclair recovering his Bahamian costs from MWP in England as damages is remote, and should not excuse him from satisfying his settled indebtedness to the company. Whipple J identified three grounds on which it might be arguable that the Bahamian costs orders would possibly be set off against orders for costs or damages going the other way (that is, if they were not recouped as damages relating to the freezing order). By reference to each we note as follows. First, Mr Sinclair’s funding of Mr Emmott’s arbitration costs does not give him a separate and direct right of recovery against MWP in England: he was not a party and elected not to participate. Second, Mr Sinclair, who was not a party to the freezing order, has not prosecuted his application for an inquiry into damages allegedly relating to the freezing order since the proceeding was filed in May 2010. Third, MWP has paid the costs awarded in Mr Sinclair’s favour in England.

[37] We acknowledge the temptation to follow the English line of preserving the status quo while the litigation between these parties grinds inexorably onwards. However, we are satisfied that MWP is entitled to execute its final and binding judgments against Mr Sinclair without further delay or waiting the result of litigation which may never proceed further or conclude in Mr Sinclair’s favour. Enforcement of MWP’s right should not be suspended indefinitely against the uncertain contingency of future litigation. And there is no evidence that execution of MWP’s judgments in New Zealand in satisfaction of his indisputable liability to the company would cause Mr Sinclair a substantial miscarriage of justice, or that he would not be able to pursue his claims against MWP in England.”

Mr Samek argues that we should be guided by this decision to a similar conclusion in the present case.

It is recognised for MWP that, while the judge’s reasons for coming to her alternative conclusion might be regarded as “obiter dictum”, this court would be disinclined to interfere with a judge’s decision as to how she would have been inclined to the exercise of a discretion conferred upon her under rule 83.7, if that was the correct provision to apply.

For my part, it seems to me that the judge’s alternative conclusion was precisely that. She thought that the applicable rule was CPR rule 3.1(2)(f). However, she looked quite separately at the exercise of her own discretion on the assumption that, as I am inclined to hold, the relevant discretion arose under CPR 83.7. She reached her conclusion as a separate ground of her decision to uphold the order of the Master. I, therefore, work on the basis that before upsetting the exercise of that separate exercise of the judge’s discretion, I should be satisfied that she erred in principle in reaching the conclusion that she did.

Mr Samek was, in any event, content that we should approach the matter in the way described in the decisions referred to in the notes to Civil Procedure Volume 1 paragraph 52.11.4 at p. 1704 as follows:

“As to what constitutes a sufficient error in the exercise of discretion to warrant interference by the appeal court, see Tanfern Ltd v Cameron MacDonald [2000] 1 W.L.R. 1311, para.32. Brooke L.J. suggested that guidance might be gained from the speech of Lord Fraser in G. v G. (Minors: Custody Appeal) [1985] 1 W.L.R. 647 at 652. In the latter part of the passage cited by Brooke L.J., Lord Fraser stated:

“… the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.”

Reasons for judgment will always be capable of having been better expressed. A judge’s reasons should be read on the assumption that the judge knew (unless he has demonstrated to the contrary) how he should perform his functions and which matters he should perform his functions and which matters he should take into account (In re C (A Child) (Adoption: Placement order) (Practice Note) [2013] EWCA Civ 431, [2013] 1 W.L.R. 3720, CA, at para.39 per Sir James Munby P.; Piglowska v Piglowska [1999] 1 W.L.R. 1360, HL, at p 1372 per Lord Hoffmann). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself (ibid).

An alternative formulation of the threshold test for interference with the exercise of discretion by the appeal court is that stated by Lord Woolf M.R. in Phonographic Performance Ltd v AEI Rediffusion Music Ltd [1999] 1 W.L.R. 1507 at 1523:

“Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”

So matters rested at the conclusion of the hearing here on 13 December 2016. Certain events after that date have to be mentioned.

At the hearing the court asked for an update as to the position concerning the assessment of the costs of the arbitration proceedings ordered to be paid by MWP to Mr Emmott. By a message from Mr Samek and Mr Solomon of 14 December, we were told (in broad terms) that those costs had yet to be assessed. However, in the last paragraph of the message we were informed that,

“Payments on account of costs were ordered in favour of Mr Emmott totalling c. £675,000. MWP made those payments on account.”

This last information contradicted what the judge had said in paragraph 4(e) of her judgment which, we had been told at the hearing, was broadly correct, save some specific matters (already mentioned above) which counsel had sought to correct. The judge had said in paragraph 4(e) that nothing had been paid towards the arbitration award or the costs. As a result, on 15 December, we ordered the filing of witness statements from the parties as to the true position about arbitration costs paid on account and any amounts of outstanding costs claimed by any party in the arbitration.

The information provided, particularly from MWP, ranged far beyond that which we had sought to obtain. As our enquiry was limited to the matters mentioned above, I will confine this judgment to material to which our order was actually directed.

It appears from the statements filed that payments on account were made by MWP in the sum of £675,000 (which MWP argues should be increased to £717,000 as a result of a set-off ordered in August 2015, about which I intend to make no comment). It seems that the fact of these payments on account was stated in paragraph 67 of Mr Wilson’s witness statement of 8 June 2015 which was before the judge.

For his part, TIS (in a statement provided by Mr Emmott) has told us that the arbitration award is for £3,986,958.40, plus interest to 10 January 2017 of $1,045,184.95 which remain unpaid. He estimated his outstanding costs as in excess of £1,525,000, plus interest. Mr Emmott says that MWP has paid nothing on account of the costs of “the Quantum Stage” of the arbitration (paragraph 22 of his witness statement of 10 January 2017).

The second matter of materiality which we must mention is that, in a judgment handed down on 13 January 2017, this court allowed MWP’s appeal from the order of 21 September 2012 of Teare J which had struck out, as an abuse of process, MWP’s claim against TIS seeking a declaration that the Max shares and certain cash were owned beneficially by MWP and not TIS. These are the proceedings referred to in paragraph 4(f) of the judgment of Whipple J.

The remainder of the new statements filed, as I have said, go well beyond what we sought to ascertain by our order of 15 December 2016.

At the conclusion of the hearing, I was hesitant as to whether or not the judge had erred in principle in her conclusion that a stay of execution should be ordered.

On the one hand, like the Court of Appeal in New Zealand, I found the type of criticism of the judge’s reliance upon potential recovery under the cross-undertaking in damages, as argued by Mr Samek here, persuasive. There were significant hurdles in the way to such recovery: first, TIS’s standing to make claims in the enquiry (a point left open in the relevant order); secondly, the fact (pointed out in the skeleton argument before the judge) that provision was made for an exception to the freezing order allowing sale of the shares in question on 5 days’ prior notice; and thirdly, the likelihood or otherwise of the Bahamian costs being recoverable as part of the damages flowing under the cross-undertaking. Further, I also consider that the judge could not properly derive support for her decision from the existence of the freezing order granted to Mr Emmott against MWP.

On the other hand, it was difficult to controvert the weight given by the judge to the fact (as she understood it) that none of the arbitration award or of the related costs orders had been paid and to the fact that Teare J had struck out MWP’s latest attempt to re-litigate the question of beneficial ownership of the Max Shares.

In the end, I have reached the conclusion that a sufficient number of the bricks, from which the exercise of the judge’s discretion was constructed, have turned out to be unsound for this court to re-exercise the discretion on whether or not to order a stay in this case.

In those circumstances, as it appears to me, the finding of fact made in favour of Mr Emmott in the arbitration as to the beneficial ownership of the shares has been found not to be binding upon MWP in its action against TIS and in the claim now on foot against TIS, all is open for dispute once more. We have, of course, no detail of how the claim in MWP’s action against TIS is pleaded and I intend to make no comment upon any possible further argument that may arise as to the extent to which issues dealt with in the arbitration can be re-opened.

The unedifying prospect is years of further litigation. It is no longer (as the judge understandably thought) just a question of “post-arbitration “mop-up””. Further, contrary to the judge’s stated understanding, orders for payment on account of arbitration costs have been met. Further, the decision of the New Zealand courts is a relevant feature of the matter and, with respect to that court, I see force in the reasoning adopted in its decision on essentially the same issue as that which faced the judge and which faces us. The usual rule today in costs disputes of this type, in lengthy and complex litigation, is “pay as you go”, as Mr Samek submitted.

All these features have brought me to the conclusion, in a landscape rather different form that in which the judge found herself, that this appeal should be allowed and that the stay of execution ordered by Master Yoxall should now be lifted.

I agree. Like my Lord, I came away from the hearing of this matter in real doubt whether the judge was wrong in her decision to grant a stay, in the alternative, on the ‘special circumstances’ ground set out in Part 83.7(4)(a), which is the applicable ground for the reasons which my Lord gives. This was not so much because I found the whole of her reasoning persuasive, but because the combination of failures by MWP to pay either the costs or damages awards in the arbitration, coupled with an apparently abusive attempt to undermine its outcome in the proceedings struck out by Teare J, seemed to me to place MWP in that small category of litigants for whose benefit the ‘pay as you go’ principle might properly be disapplied.

But the new information about the partial discharge of the costs award, and the overruling of Teare J’s decision by this court, is enough to lead me to the opposite conclusion, namely that this appeal should be allowed. I can see no good reason why the ‘pay as you go’ principle should be disapplied, nor any other special circumstances for a stay under Part 83.7.