EDF Energy Customers Ltd v Re-Energized Ltd

This is my judgment on an appeal brought by the debtor company, Re-Energized Ltd, against an order made by District Judge Watkins in the Bristol District Registry of the High Court Chancery Division on 18 July 2017 for the company to be compulsorily wound up. The appellant’s notice is undated, but was filed in the District Registry on 24 July 2017. I gave permission to appeal on 13 November 2017 on the papers.

The order was made on a petition presented on 23 February 2017, following service of a statutory demand on the company on 1 December 2016. Prior to that, on 27 March 2017, the company had applied for an injunction to restrain the advertisement of the winding up petition. I heard the application for an injunction on 7 April 2017, when Mr Luke Watson, director of the company appeared on its behalf. I dismissed the application for reasons given at the time. I shall have to refer to some of these shortly. It was Mr Watson also who appeared on behalf of the company before District Judge Watkins at the hearing of the petition to wind it up.

The company carries on business by supplying energy saving measures to electricity providers who have obligations to deliver such measures to domestic premises in the UK. The respondent is one such provider. The petition is based on a debt claimed to arise out of a standard form government contract entered into between the parties known as an ECO brokerage auction platform contract. It is common ground that the company breached the terms of three of these contracts by failing to provide the agreed number of measures and because a number of other measures which it submitted and for which the respondent paid were later rejected by the industry regulator.

On 9 March 2015, the respondent served notices on the company claiming payment of "Buyer's Liquidated Damages" (as defined by the contract) in the sum of £145,049.35 in respect of measures contracted to be supplied but never delivered. At the same time the respondent sought "Buyer’s Replacement Costs" (also as defined by the contract) totalling £24,054.10 in respect of measures contracted to be supplied, and actually delivered and paid for but which were later rejected by the regulator. By completing a spreadsheet sent to it by the respondent, the company confirmed that it accepted that the measures rejected by the regulator had been rejected except in respect of one measure worth £153.02. On 12 April 2016, the respondent sent a letter of demand for payment of Buyer's Liquidated Damages, Buyer's Replacement Costs, interest and contractual costs. On 1 December 2016 the respondent served the statutory demand referred to above.

One other important factual matter to make clear at this stage is this. After Mr Watson had applied to me for an injunction to restrain advertisement of the petition, and failed to obtain that injunction, he had an email conversation with the solicitors for the respondent, Veale Wasbrough Vizards (“VWV”). Some of that conversation is subject to without prejudice privilege, and I have not seen it. But the appellant relies on two of those emails to Mr Watson, which (for the most part) are not so subject. I set out the texts of these two emails below.

First, on 18 May 2017, Ed Husband, a partner in VWV, wrote as follows:

“Dear Mr Watson

I have been passed a copy of your email below as my colleague Nick Roberts is on annual leave. Although I note your comments below, I am afraid that it reflects a misunderstanding of the position that your company now finds itself in. As you know, you have already sought to challenge the validity of the monies owed by your company under the terms of its contract with EDF Energy. That challenge was unsuccessful and HHJ Matthews held that EDF Energy was entitled to proceed with its petition. As a result, EDF is confident that any future challenge to the petition is also bound to fail. There is also no onus on our client to provide the information that you seek below as the debt due to EDF is contractual.

[Redaction] our client would be willing to seek a final adjournment for 28 days from 22nd May.

Yours sincerely

Ed Husband."

Second, Mr Husband wrote again on 18 May 2017 about 2.5 hours later, as follows:

Mr Watson has not filed any witness evidence (which raises questions not only of procedure but also fairness to the respondent), but he says that he would have appealed my decision to refuse an injunction, had it not been for the assurance which he says he received from VWV that he could run exactly the same arguments again at the winding up hearing. Yet, as appears below, at the winding up hearing on 18 July 2017 District Judge Watkins declined to allow Mr Watson to argue any points which had already been decided during the course of the injunction hearing, and Mr Watson did not raise any other matters. Mr Watson says that this is unfair.

The transcript of the hearing before the district judge shows that he referred to the earlier hearing before me and said to Mr Watson (p 4, line11):

“That was the purpose of the hearing but the point you want to raise again it seems has already been decided and decided against you. Is there anything new you wish to raise? Having read your statement, I am not sure that there is but I may have misunderstood it so please correct me if you think I have got that wrong.”

In answer to this invitation, Mr Watson said the company would have appealed against my decision on the injunction application, but the district judge simply said that the point had been decided against the company and that was that. The district judge went on (p 5 line 12):

“Mr Watson, I have read the document you have submitted and I note the points that have been made. Is there anything else you want to say?”

Mr Watson’s reply was “No.”

The district judge then heard from counsel on behalf of the creditor (Ms Daisy Brown) and proceeded to give judgment. During the course of that judgment (of which I have seen an approved transcript), after setting out the history of the matter and referring to the company’s written arguments opposing the petition to wind up, which he had read, he said this:

“5.

In summary, what is being sought by the respondent company today is an opportunity to reargue all of the points that were argued before Judge Matthews when he considered the application for an injunction. Judge Matthews has already decided all of those points against the respondent. I could do no more than, firstly, identify that the issues had been resolved but, in any event, I am satisfied, having looked at the documents I do have (I have the court file; I have got the documents provided today) that the conclusion that has been reached by Judge Matthews on the last occasion is unassailable. It has certainly not been the subject of any challenge and would have been, in any event, conclusions to which I would have come also. The ‘issue’ is simply a matter of construction and insofar as construction is concerned, Judge Matthews identified the salient points before coming to the conclusion that there was no substance in what was being said by the respondent debtor, before refusing an application for the injunction.

6.

Nothing has changed. The arguments have not changed. The financial position has not changed. There is a significant debt that was subject to the statutory demand. The petition based on that failure to comply with the statutory demand, which was in a sum a little over £190,000. That of course exceeds the £750.00 that the petitioning creditor needs to satisfy me.

7.

I understand from the documents that have been filed that there is no supporting creditor. The matter has been properly advertised.

8.

In the circumstances of this case, the petitioning creditor is entitled to the order that is being sought. Turning that on its head, there is no basis upon which I could properly refuse to make the order that is sought today…”

The grounds of appeal as filed were that:

At the hearing of the appeal, Mr Martin Budworth of counsel appeared for the appellant (by direct access) and Ms Daisy Brown of counsel appeared for the respondent (instructed by VWV solicitors). Appeals from orders to wind-up are governed by the ordinary rules on appeals. Under CPR r 52.21(1), an appeal is limited to a review of the decision of the court below, unless the court considers that in the circumstances of a particular appeal it would be in the interests of justice to rehear the case: Audergon v La Baguette Ltd [2002] EWCA Civ 10, [83]. But, as Ms Brown submitted, it needs to be something “exceptional”: Mills v Stuart-Smith [2015] EWHC 4279 (Ch), [28]. The appeal court will allow the appeal where the decision was (a) wrong, or (b) unjust, because of serious procedural or other irregularity in the proceedings below: CPR r 52.21(3). Here ‘wrong’ means wrong in law, wrong in fact, or wrong in the exercise of discretion. One other important point is this. It is clear law that the court below must give reasons for its decisions: Bassano v Battista [2007] EWCA Civ 370. But the judge’s reasons must be read on the assumption that the judge knew how to perform the judicial functions and the matters which had to be taken into account: Piglowska v Piglowski [1999] 1 WLR 1360, 1372, per Lord Hoffmann.

Mr Budworth argued firstly that the judgment of the district judge had shut out relitigating issues raised at the injunction hearing, and that there was no real hearing in consequence. The district judge did not pause to exercise the undoubted discretion which the court had as to whether to make a winding up order. Moreover, Mr Watson misunderstood what he was entitled to do at that hearing. He was misled by the emails from the respondent's solicitors. The result was that Mr Watson never got into his stride. The district judge assumed a complete overlap with the injunction hearing. Mr Budworth said this was wrong. What the district judge should have done was to invite Mr Watson to address him on everything that he wanted to say, and then to review each item to see whether there was any overlap with the injunction hearing. But the district judge did not do that. The appeal court consequently had the duty as well as the power to prevent the decision below resulting in injustice: see Lord Atkin in Evans v Bartlam [1937] AC 473, 481. For these reasons, he said, the appeal should take place by way of rehearing rather than merely review.

But he further argued, secondly, that the terms of the contract between the parties did not in the circumstances entitle the respondent to present a petition to wind up the company. He referred to clauses 15.6 and 15.7. They provide as follows:

The consequence of these provisions was that the respondent was only entitled to be paid immediately such part of the damages claimed as were “not in dispute”. All the remainder of the claim was, by clause 16.2 to be subject first to alternative dispute resolution and subject to that to adjudication under the TCC scheme. Clause 16.2 provides:

“(a)

Subject to either Party's rights to adjudicate at any time, the Parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation and/or, if the parties agree, mediation.

(b)

Notwithstanding any other provision of this Agreement either party may refer a dispute arising under this Agreement to adjudication at any time in accordance with the Technology and Construction Solicitors Association Adjudication Rules which are deemed to be incorporated into this Agreement."

He referred to a letter from VWV dated 27 June 2016 in which they appeared to have taken the view that adjudication was required. That letter referred to the letter of demand of 16 June 2016, urged the company to take legal advice, and continued:

“We are currently taking our client’s urgent instructions regarding the commencement of adjudication proceedings against [the company], to determine our client’s claim.

To resolve this matter before the costs of adjudication proceedings are incurred … will you please [take one of two possible courses of action].”

(I comment only that this letter certainly recognises that adjudication was possible, and perhaps even desirable. But I do not agree that it shows that VWV thought that it was required. Moreover, as Ms Brown pointed out, no party has ever ‘referred’ the matter to adjudication.)

Mr Budworth argued that the combination of Clauses 15.7 and 16.2 meant that the right to present a petition to wind up the company had been contractually excluded. Accordingly, the dispute between the parties could never become the subject of a winding up in the first place. Unless and until there was a proper calculation of the amount of the non-disputed element of the claimed debt, the issue of the statutory demand was premature.

Thirdly, Mr Budworth argued that a term was to be implied in the contract that the respondent could not rely on its own default in making any choices which are open to it under the terms of the contract. Under clause 6.7 of the contract, an option was given to the respondent to decide whether to take replacement points or to take costs. This choice had to be subject to an implied term that the respondent did not rely on its own default in making the choice. He referred me to an email dated 9 May 2016 from Suzanne Ardern of the company (albeit then trading under a different name). This email made allegations of various failures by EDF which led to their rejecting measures submitted to it by the company.

Fourthly, Mr Budworth argued that I had been wrong at the injunction hearing in applying the law on penalty clauses. He referred me to the Cavendish Square Holding BV v Makdessi [2016] AC 1172, a decision of the Supreme Court, and submitted that the question of whether a clause was a penalty was how it operated in practice, which was a highly fact sensitive question. It was not possible to decide in the abstract whether a clause was a penalty because you need it to find the facts first.

Fifthly, Mr Budworth argued that, in relation to the calculation of “Buyer’s Liquidated Damages”, there was a real risk that the respondent never had to go out into the market to buy ECO points. Accordingly they would be using these provisions to obtain a windfall. There must be an implied term that the respondent was not allowed to do this when it has not suffered any loss. In the present case there was no evidence that the respondent had ever had to go out to the market to make a substantial purchase.

One of the important features of this case is that Mr Luke Watson, the director of the company that appeared both on the injunction hearing and the winding up hearing, although obviously intelligent and articulate, is not a lawyer. So the company is to be treated as a litigant in person. A question was argued before me as to how far that makes a difference in applying the relevant rules, both of procedure and of substance, to the facts of this case. I dealt with this briefly in my recent decision in the case of Reynard v Fox [2018] EWHC 443 (Ch), [44]-[46]. But the discussion in the present case was more extensive, and I need to say a little more.

There are of course some rules in the CPR which are specifically designed to apply to litigants in person. These include CPR rule 3.1A, dealing with the exercise of the court's case management powers, and the costs budgeting rules, also in CPR Part 3, which impose no requirement on a litigant in person to produce a budget. There are some practical differences too. For example, the court generally asks a represented litigant to produce bundles for a hearing where the person who would otherwise do so (normally the claimant or applicant) is acting in person.

But there are no express rules distinguishing represented and unrepresented litigants that are directly relevant to this case. So I must look at the matter more generally. A number of authorities were cited to me and I review them briefly here. The first was Tinkler v Elliott [2012] EWCA Civ 1289. This was an application by litigant in person under CPR rule 39.3 to set aside a judgment given at a hearing at which he had not attended. One issue which arose was that of promptness in applying.

Maurice Kay LJ (with whom Munby and Lewison LJJ agreed) said:

“31.

The implications of Mr Elliott being a litigant in person were considered by Sharp J to be significantly disadvantageous to him, in particular because he ‘did not really understand that he could apply to set aside the judgment until he was refused permission to appeal in October 2011 where the fact that he could have made such an application was mentioned by Sir Richard Buxton’. Although he had received a copy of the transcript of the proceedings before Judge Tetlow (in which the possibility of an application to set aside was mentioned) in September 2011, ‘even then he did not appreciate what he could do until after he received the reasons for refusing permission to appeal’ in October.

32.

I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence. Even if one factors in Mr Elliott’s health problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. In my judgment, this is where Sharp J went wrong. She regarded this to be ‘a special case on its facts’ but it could only be considered such if one goes too far in making allowances for a litigant in person. For these reasons, I do not consider that it was open to her to find the promptness requirement satisfied.”

The next case was Drysdale v Department of Transport [2014] EWCA Civ 1083. This was a case before an employment tribunal where the applicant’s lay representative (in fact his wife) became exasperated during the hearing, and was also unwell, and purported to withdraw the whole claim. The tribunal made an order dismissing the claim. Subsequently the applicant applied to set aside the tribunal's order.

Barling J (with whom Arden and Clarke LJJ agreed) considered a number of authorities, and said:

“49.

From the authorities to which Mrs Drysdale referred (see above) I derive the following general principles:

(1)

It is a long-established and obviously desirable practice of courts generally, and employment tribunals in particular, that they will provide such assistance to litigants as may be appropriate in the formulation and presentation of their case.

(2)

What level of assistance or intervention is “appropriate” depends upon the circumstances of each particular case.

(3)

Such circumstances are too numerous to list exhaustively, but are likely to include: whether the litigant is representing himself or is represented; if represented, whether the representative is legally qualified or not; and in any case, the apparent level of competence and understanding of the litigant and/or his representative.

(4)

The appropriate level of assistance or intervention is constrained by the overriding requirement that the tribunal must at all time be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided.

(5)

The determination of the appropriate level of assistance or intervention is properly a matter for the judgment of the tribunal hearing the case, and the creation of rigid obligations or rules of law in this regard is to be avoided, as much will depend on the tribunal’s assessment and “feel” for what is fair in all the circumstances of the specific case.

(6)

There is, therefore, a wide margin of appreciation available to a tribunal in assessing such matters, and an appeal court will not normally interfere with the tribunal’s exercise of its judgment in the absence of an act or omission on the part of the tribunal which no reasonable tribunal, properly directing itself on the basis of the overriding objective, would have done/omitted to do, and which amounts to unfair treatment of a litigant.”

Then there was Hysaj v Home Secretary [2014] EWCA Civ 1633, decided on 16 December 2014. Three cases were heard together to enable the court to give guidance on the approach that should be taken to applications for extensions of time for filing a notice of appeal following the decisions in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Denton v TH White Ltd [2014] 1 WLR 3926. In each case the applicant failed to file a notice of appeal within the time prescribed by CPR 52.4(2), which made it necessary for him to seek an extension of time.

Moore Bick LJ (with whom Tomlinson and King LJ J agreed) said:

“43.

Mr. Benisi sought to explain part of the delay that had occurred in his case by asserting that he did not have sufficient funds at his disposal to enable him to instruct solicitors to file a notice of appeal at the right time. In my view shortage of funds does not provide a good reason for delay. I can well understand that litigants would prefer to be legally represented and that some may be deterred by the prospect of having to act on their own behalf. Nonetheless, in the modern world the inability to pay for legal representation cannot be regarded as providing a good reason for delay. Unfortunately, many litigants are now forced to act on their own behalf and the rules apply to them as well.

44.

At the time when the decisions which they now seek to challenge were made Mr. Benisi and Mr. Robinson were both acting in person. It is therefore convenient to consider whether the court should adopt a different approach in relation to litigants in person. The fact that a party is unrepresented is of no significance at the first stage of the enquiry when the court is assessing the seriousness and significance of the failure to comply with the rules. The more important question is whether it amounts to a good reason for the failure that has occurred. Whether there is a good reason for the failure will depend on the particular circumstances of the case, but I do not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules. That was the view expressed by the majority in Denton at paragraph 40 and, with respect, I entirely agree with it. Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.”

Two days later, on 18 December 2014, there was the decision in Nata Lee Ltd v Abid [2014] EWCA Civ 1652. That was the case of a boundary dispute, in which the claimant had been represented by both leading and junior counsel, and the defendant limited company by a director of the company who was not a lawyer.

Briggs LJ (with whom Moore Bick and Underhill LJ J agreed) said:

“53.

I make it clear at the outset that, in my view, the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants. In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.”

In Elliott v Stobart Group Limited [2015] EWCA Civ 449, Mr Elliott was the same person who had appeared in the earlier case of Tinkler v Elliott. Here as a litigant in person he was appealing against the dismissal of his application for an extension of time for the service of expert evidence.

Tomlinson LJ (with whom Laws and McCombe LJJ agreed) said:

“39.

In Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633 this court took the opportunity to give guidance on the approach that should be taken to applications for extensions of time for filing a notice of appeal, in the light of the decisions of the court in Mitchell and Denton. In each case before the court in Hysaj the applicant had failed to file a notice of appeal within the time prescribed by CPR 52.4 (2), which made it necessary for him to seek an extension of time. At paragraph 43 of the judgment of Moore-Bick LJ it was pointed out that in the modern world inability to pay for legal representation cannot be regarded as a good reason for delay. At paragraph 44 it was pointed out that being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the Civil Procedure Rules or, I would add, court orders.”

Lastly, in Barton v Wright Hassall LLP [2016] EWCA Civ 177, [2018] UKSC 18, the claimant, then a litigant in person, had sent a claim form to solicitors for the defendant by email, when he knew that the solicitors did not accept service by email. The question was whether such service should be validated under CPR r 6.15(2). The district judge and the judge below on appeal had both held that it should not be. The Court of Appeal reached the same conclusion, making observations on the position of litigants in person. At the time of the original hearing of the present appeal, the claimant had appealed to the Supreme Court, and the hearing had taken place, but that court had not then given its judgment. By the time of the adjourned hearing, it had done so. The court by a majority of 3-2 affirmed the decisions below. But the judges were unanimous on the position of litigants in person generally.

For the majority, Lord Sumption (with whom Lords Wilson and Carnwath agreed) said:

“18.

Turning to the reasons for Mr Barton’s failure to serve in accordance with the rules, I start with Mr Barton’s status as a litigant in person. In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him: R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, para 44 (Moore-Bick LJ); Nata Lee Ltd v Abid [2015] 2 P & CR 3. At best, it may affect the issue ‘at the margin’, as Briggs LJ observed (para 53) in the latter case, which I take to mean that it may increase the weight to be given to some other, more directly relevant factor. It is fair to say that in applications for relief from sanctions, this is mainly because of what I have called the disciplinary factor, which is less significant in the case of applications to validate defective service of a claim form. There are, however, good reasons for applying the same policy to applications under CPR rule 6.15(2) simply as a matter of basic fairness. The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”

For the minority, Lord Briggs (with whom Lady Hale PSC agreed) said:

“42.

Although a number of the mitigating factors listed above are in a sense characteristics of Mr Barton being a litigant in person, that comes nowhere near saying that being a litigant in person constitutes a free-standing good reason why his botched attempt at service should be validated. In that respect I adhere to what I said in Nata Lee Ltd v Abid [2015] 2 P & CR 3, at para 53, to which Lord Sumption refers. Save to the very limited extent to which the CPR now provides otherwise, there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them. If, as many believe, because they have been designed by lawyers for use by lawyers, the CPR do present an impediment to access to justice for unrepresented parties, the answer is to make very different new rules (as is now being planned) rather than to treat litigants in person as immune from their consequences. The good reason in the present case is not that he is a litigant in person, but rather the fact that Mr Barton’s attempted service by email achieved all the underlying purposes of the relevant rules. His being a litigant in person, with the particular consequences described above merely mitigates, at the margin, the gravity of non-compliant conduct which, had it been done by a legal representative, would have been more serious as an impediment to validation.”

From these authorities I derive the following principles:

In the present case Mr Watson was an articulate and knowledgeable layman, as one would expect of the owner of a sophisticated modern business. However, I bear in mind that Mr Watson did not seek an adjournment on either the injunction hearing or the winding up hearing in order to obtain legal representation. Nor did he take advice from a lawyer on the question of the effect of the emails coming from the respondent's solicitors to him as to whether he could run the same arguments again at the winding up hearing. Nor did he seek to appeal the injunction ruling. Mr Watson accepts that he knew he could appeal. Indeed, he says that he would have appealed the injunction ruling but for the emails coming from the solicitors for the respondent, which he misconstrued, but on which he did not seek advice. What the solicitor said was correct as far as it went. He could have said more (indeed, he could have said rather less), but there was no duty, as Mr Watson accepts, on those solicitors to advise him as the adverse party. In my judgment those emails were not misleading, and do not alter the basic position.

The rules in this part of the law are not hard to find, and neither are they particularly difficult to understand. Of course, I accept that a layman without any experience of finding his way round a law book or the statute book will take longer to do so, and may fall into error more easily and more frequently than a trained lawyer. That is, after all, why it takes training to become a lawyer. Yet Mr Watson had been able to put together a sensible skeleton argument and a bundle for the injunction hearing, a written argument before the district judge, and also a bundle for this appeal. That was of course his choice, as to how he allocated the company’s available resources. But he cannot complain if it does not produce the result he wished for.

I bear in mind also that a litigant in person is not the only party to consider. I must also consider the position of the represented party and the public generally. Every indulgence given to a litigant in person casts an extra burden on the represented party and on the court system. This extra burden is usually marginal, but it mounts up over time. Yet a represented party too may have limited resources, and may have had to make choices, indeed sometimes sacrifices too, in allocating resources so as to be able to afford representation. Delays and lack of finality may impose unwanted and unwarrantable costs on him or her too. The same is true of the court system. Everyone knows that resources are limited. If cases overrun, or need to be adjourned or relisted, that consumes more resources that could be used for other litigants. So, overall, in my view there should be no special treatment for Mr Watson here because he was a litigant in person at first instance.

I turn to the first argument made, that the hearing below was unfair. I remind myself that Mr Watson could have sought to appeal the earlier injunction ruling but did not do so. He says he misunderstood or misinterpreted the solicitors’ emails, but I think they are both accurate and clear. If Mr Watson wanted reassurance that he could rely on, he should have consulted his own lawyer. He chose not to. The district judge was hard pressed, with limited time in a busy list. He had the documents on the court file and the documents with which he was presented at the hearing, including the appellant’s written arguments. He asked the right questions, invited Mr Watson to make any new points not advanced at the injunction hearing, and listened to what Mr Watson had to say.

In my judgment, there was no duty on the court in those circumstances to give any further assistance to an articulate and knowledgeable litigant in person. In particular, there was no need to go through any checklist of points to see whether there could be anything else which Mr Watson had not mentioned but should have mentioned. Mr Watson did not raise a number of the points now raised by counsel on the appeal. The district judge in his judgment asked himself the right questions. He also asked whether Mr Watson had any further points to make (and he did not). From the district judge’s judgment it is clear that he considered whether the conditions for the making of an order were satisfied, and that he understood that he was exercising a discretion (on judicial principles) as to whether to make an order. Finally, there is no duty on any judge to give a full-length detailed judgment in every case. It is enough if the judge’s reasoning is apparent. In this case it was.

In any event, as Park J put it in Re Lummus Agricultural Services Ltd [2001] 1 BCLC 137, 141g,

“It is well settled that, if a creditor with standing to make the application wants to have the company wound up, and if the court is satisfied that the company is unable to pay its debts, a winding-up order will follow unless there is some special reason why it should not. It is sometimes said that in such a case, a petitioning creditor is entitled to a winding-up order ‘ex debito justitiae’.”

In my judgment, the procedure adopted by the district judge in this case was not in breach of the rules, and was not unfair. As it seems to me, the attitude of the company in this case comes close to saying that, in the case of a litigant in person at least, but maybe in that of every litigant, the litigant has the right to the ‘correct’ result. This is not so. Indeed, it could not be so. In most cases both sides think they are right. But they cannot both be right. And judges differ, one from another, in small, human ways. Even the same judge may not think in exactly the same way day after day. Instead, what every litigant has the right to is a due, or fair, process. If the process itself is a good one, and is correctly followed, this is the best guarantee we have of achieving the ‘right’ result. But merely because, in any particular case, the process does not reach what the litigant considers to be the ‘right’ result, does not mean that it was unfair, let alone unlawful.

Mr Budworth relied on Evans v Bartlam [1937] AC 473. Here the plaintiff brought an action against the defendant in respect of a promise to pay betting debts. The defendant failed to enter an appearance to the writ of summons (functionally, the same as acknowledgment of service of a claim form now), and judgment was entered against him in default. Subsequently the defendant applied to set aside the judgment, presumably on the basis that the debts were unenforceable by virtue of the Gaming Act. The master refused the application. The judge allowed an appeal and set aside the judgment. The Court of Appeal by a majority reversed the judge and restored the default judgment. The defendant appealed to the House of Lords and succeeded.

Lord Atkin said (at 480-81):

“[W]hile the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge’s discretion except on grounds of law, yet, if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it.”

Lord Thankerton and Lord Roche agreed. Lord Russell and Lord Wright gave separate speeches, but did not dissent from what Lord Atkin had said.

It is necessary to note that, at this time, procedure in the High Court and the Court of Appeal was governed by the RSC 1883 (as amended). Within those rules, Order 54, rr 21-24 governed appeals from masters, and Order 58 governed appeals to the Court of Appeal. But these rules did not set out (as the current rules do) the basis upon which the appellate court would allow an appeal. As Ms Brown pointed out, CPR r 52.21(3) now provides that

“The appeal court will allow an appeal where the decision of the lower court was—

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

In my judgment this new rule covers the ground formerly occupied by Lord Atkin’s dictum, uttered at a time when there were no express rules governing the position. So in the present case, the question is whether the decision below was wrong, or unjust because of a serious procedural or other irregularity in the court below. For the reasons that I have already given, I do not think that it is unjust because of an irregularity. That leaves the question whether it was wrong.

However, given the course which these proceedings took, there is a further point which I must consider first. This is how far it should be open to a litigant to seek to re-open matters which have been decided on the merits at an earlier stage of the proceedings, or which could have been raised and decided then but which were not. In ordinary civil litigation, the principles of res judicata would undoubtedly be relevant. In insolvency cases, those principles appear not to have been determinative. Instead, a different principle based on waste of resources has been used.

In Harvey v Dunbar Assets plc [2017] EWCA Civ 60, Henderson LJ (with whom Gross LJ and Sir Stephen Tomlinson agreed) said:

“35.

It will be apparent from this summary of the relevant legislation that there are a number of different stages in the procedure governing personal bankruptcy at which the debtor may in principle be entitled to raise a dispute about his alleged indebtedness to the creditor. The first opportunity is on an application to set aside the statutory demand, when the debtor needs to demonstrate ‘grounds which appear to the court to be substantial’. It is common ground that the test which the court applies on such an application is in substance the same as the test applied on an application for summary judgment or to strike out a defence, namely whether the debtor has a defence to the claim (or has a cross-claim) which has at least a real (as opposed to fanciful) prospect of success. The second opportunity, if the statutory demand is not set aside and a petition is presented, is on the hearing of the petition itself, when the court must still be satisfied as to the existence of the debt, and retains a residual discretion whether or not to make a bankruptcy order. A third opportunity may arise if the debtor asks the court under section 375 of the 1986 Act to review, rescind or vary any order which it has made, including an order refusing to set aside a statutory demand or a bankruptcy order. Finally, the question could arise on an application to annul the bankruptcy order under section 282. It is therefore unsurprising that a considerable body of authority has developed in which the courts have considered how far it is open to a debtor to rely, at one of the later stages in the bankruptcy process, on an argument relating to his liability for the debt which he either ran unsuccessfully at the initial stage (i.e. on an application to set aside the statutory demand), or which he failed to run on such an application but upon which he later wishes to rely.

36.

The judge conducted a valuable review of this body of authority at [32] to [36] of his judgment. As he said in [34], ‘the arguments have been well trod in these previous decisions’. He then set out the principles relevant to the present case which he derived from the authorities. The judge expressed the first and second of those principles as follows:

‘First, the court, on the hearing of a bankruptcy petition at least, has a duty to consider, on the material before it, whether the conditions for the making of a bankruptcy order are satisfied …

Second, on such a hearing where there has been a previous hearing on the merits, whilst the court ought always to ask itself whether the arguments have been previously run and failed, and, why arguments now advanced have not been run before, absent a change of circumstances or some other special or good reasons or circumstances, the debtor can not go back on the hearing of the petition (or for that matter on an application to annul or review under s.375(1)) to re-argue or reiterate arguments presented earlier, or which he had an opportunity to present. The basis of this principle (which has been referred to in the recent cases as the Turner principle) is that to hold otherwise would be to encourage a waste of court time, a waste of the parties’ money and defeat the obvious purpose of the statutory scheme which was that arguments on whether or not there was a genuine debt ought to be raised at the earliest stage i.e. on the application to set aside the statutory demand …’

37.

In my judgment these two principles are firmly based on the authorities, and helpfully summarise the approach which the court should adopt when on the hearing of a petition the debtor seeks to rely on arguments which he presented, or had an opportunity to present, at a previous hearing on the merits (usually on an application to set aside the statutory demand). The leading authority is the decision of this court in Turner v Royal Bank of Scotland [2000] BPIR 683, CA. This was a case with a rather complex procedural history, in which the respondent bank sought to make the appellant debtor bankrupt on the basis of a summary judgment which it had obtained against him in 1992 for £8,277.78 plus interest. The proceedings based on the statutory demand included a re-hearing following a first appeal, and culminated in the dismissal of the debtor’s application to set it aside. This refusal was upheld by the High Court on appeal, and the Court of Appeal subsequently refused the debtor permission for a second appeal. The bank then served a bankruptcy petition, upon which a bankruptcy order was made in the debtor’s absence in June 1997. The petition proceedings then generated two further judgments, on an appeal from the bankruptcy order and a subsequent application for a stay, from which the debtor appealed to the Court of Appeal on the grounds that he had a cross-claim against the bank which equalled or exceeded the petition debt. The debtor’s appeal was finally dismissed on 30 June 2000, nine and a half years after the bank had originally obtained summary judgment. The leading judgment was delivered by Chadwick LJ. Buxton LJ delivered a short concurring judgment, and the third member of the court, Aldous LJ, agreed with both judgments without adding to them.

38.

In his review of the authorities, Chadwick LJ at 688C endorsed as ‘a correct statement of position’ the following observations of Vinelott J in Brillouett v Hachette Magazines Ltd, Re a Debtor (No. 27 of 1990) [1996] BPIR 518 at 520:

‘There may be rare cases in which it can be said that a debt claimed in a statutory demand against which there has been an unsuccessful attempt to set it aside and which has not been paid or secured or compounded for is not payable at the date of the petition, for instance, if as a result of legislation it were to be become unenforceable between those two dates. But unless there is some change of circumstance of that kind it seems to me that all that the petitioning creditor is required to do is to show that he has made a statutory demand, that either no attempt has been made to set it aside or an unsuccessful attempt has been made, and that the amount of the debt has neither been paid nor secured nor compounded for. The debtor cannot go back and reargue the very grounds on which he unsuccessfully sought to have the statutory demand set aside.’

39.

Later in his judgment, Chadwick LJ set out the relevant provisions of the bankruptcy legislation and stated the following conclusions at 694A-D:

‘Rule 6.25 of the 1986 Rules provides that on the hearing of the petition, the court may make a bankruptcy order if satisfied that the statements in the petition are true and that the debt on which it is founded has not been paid or secured or compounded for. So the court is not bound to make a bankruptcy order; there is a residual discretion in the court to decide on the hearing of the petition whether or not to make the bankruptcy order. But it cannot have been intended, as it seems to me, that when exercising the discretion (which it undoubtedly has under r. 6.25), whether or not to make a bankruptcy order at the hearing of the petition, the court is required to revisit the arguments which have already been advanced on the hearing of the application to set aside the statutory demand; and which have already been rejected at that hearing. As Vinelott J pointed out in the Brillouett case, the debtor cannot go back and reargue the very grounds on which he unsuccessfully sought to have the statutory demand set aside. It will require some change of circumstance between the unsuccessful attempt to set aside the statutory demand and the hearing of the petition before the court (on the hearing of the petition) can be asked to go into the question which has already been determined at the hearing of the statutory demand. To hold otherwise would be to encourage a waste of court time, and a waste of the parties’ money; and would defeat the obvious purpose of the statutory scheme.’

40.

In the subsequent decision of this court in Coulter v Chief Constable of Dorset Police (No. 2) [2005] EWCA Civ 1113, [2006] BPIR 10, Chadwick LJ took the opportunity, at [19], to point out that estoppel and res judicata had not been canvassed before the court in Turner. Rather, the basis of his observations in Turner had been:

‘… that it would be a waste of court time and the parties’ money to allow a debtor, who had already failed on his application to set aside a statutory demand, to advance the same arguments by way of challenge to the petition debt on the hearing of the petition.’

41.

Chadwick LJ then said that the same point had been made by Neuberger J in Atherton v Ogunlende [2003] BPIR 21 at 27, where he said:

‘However, in general, it seems to me right in principle and in the public interest that, if a party has raised an argument in a proper forum, where it has been considered in connection with a particular process, in this case a bankruptcy or a prospective bankruptcy, and from which forum he had a right of appeal if he wished to exercise it, if that argument is rejected and he does not appeal, it requires exceptional circumstances before he can raise the same argument at a later stage during the same process.’

Neuberger J went on to say (ibid), that ‘the principle should not be abrogated simply because the party has found a better way of putting the same point, or wants to put in more evidence to support the same point’.”

In the present case, at the injunction hearing last April, I heard argument on behalf of the company on at least three points which in principle are pursued again now. The first was the contractual penalty argument. The second was the argument that EDF had a practice of finding fault with broker submissions. The third was that the buyer’s liquidation damages claim was flawed because the definition of “Platform Price Quote” was missing. Mr Budworth says that the contractual penalty argument that he has put forward in this case is actually a new argument, rather than the same one put by Mr Watson on behalf of the company during the injunction hearing. In my judgment, that is not correct. It is simply a more sophisticated version of that which was put forward then, and which, having failed before me, was not appealed.

Each of these three arguments was put and dealt with on its merits during the injunction hearing. I can therefore see no justification for their being advanced now, on appeal from the decision of the district judge. In my judgment, whether one regards this as simply a waste of time and resources, in accordance with the decision in Harvey v Dunbar Assets, or as matters which have already been decided, and therefore governed by the doctrine of res judicata, it would not be right for me to entertain any of these arguments now.

That leaves three other arguments which were put forward by Mr Budworth, but which were not previously argued. As I have already said, Mr Watson was asked at the hearing by the district judge if he had anything else to say, but he said that he had not. The first is the argument, summarised in paras [15]-[18] above, that the notice by EDF was not a proper basis for a winding up petition. In substance the argument is that a combination of clauses 15.7 and 16.2 of the contract between the parties meant that they were in effect contracting out of the possibility of using a summary means of collecting debts through the use of winding-up petitions. There is no doubt that it is lawful for parties to a contract so to agree. The question is simply whether that is what they have agreed.

As to clause 15.7, it is clear that the parties agreed that only the nondisputed part of any claimed debt should actually become payable after 10 days. One problem for the company is that my decision in the injunction hearing concluded that there was no genuine dispute on substantial grounds in relation to the claimed debt. Had there been such a dispute, it would have been appropriate to grant an injunction. But I decided that there was not. So in principle it seems to me that it is not open to the company to argue that the factual basis for combining clause 15.7 with 16.2 can be invoked now.

But, in case that is wrong, I go on to consider the matter in principle. One point is that, by clause 15.7, sums which are not disputed become payable at the end of 10 days. It is argued therefore by EDF that any challenge to such sums being claimed must be made within the 10 days. In my judgment there is no sense in requiring sums to be payable at the end of 10 days if in fact the challenge can be made after that time. Accordingly, I hold that this contract required that, for a sum to be in dispute, it had to be challenged within the 10 days within which it was notified. There is no evidence before me that it was so challenged. Indeed, the evidence is that it was not challenged until May 2016. Accordingly, in my judgment it is no longer challengeable.

If I am wrong about that, then in my judgment it is implied, as a matter of giving business efficacy to the contract, that a challenge must be made within a reasonable time of the demand being made. In my judgment leaving it until May 2016 is not a reasonable time, and this means that it can no longer be challenged. Accordingly, the same conclusion follows.

Finally, there is the question of construction. Assuming (contrary to what I have held) that a challenge was made within the time limited by the contract, and that therefore there is a dispute as to everything exceeding £750, the question is whether the combination of clauses 15.7 and 16.2 in fact amounts to a contract not to use summary procedure in a collection procedure such as a winding up petition. In my judgment, it does not. Those clauses do not, either singly or in combination, exclude the possibility of presenting a winding up petition. They provide, first of all (by clause 15.7), for a payment of non-disputed sums by the party in default to the party not in default. Then, by clause 16.2, a mechanism for resolution of the dispute is provided. But this mechanism is not compulsory. If no one invokes it, it does not prevent any other mechanism for collection of the debt, if it is not disputed on substantial grounds. That is a far cry from a contract not to use winding up as a method of collecting the debt. In my judgment, therefore, even if this further argument were able to be made on this appeal, it would not avail the company.

There are two other arguments now put forward on behalf of the company, which so far as I can see were not put to the district judge. One is that a term was to be implied in the contract that the respondent could not rely on its own default in making any choices which are open to it under the terms of the contract. I referred to this in para [19] above. But it seems to me that the effect of any default by EDF would be governed by the contract, construed as a whole, rather than by implied terms. Some defaults might be trivial in their effect, whilst others might be more serious. Some defaults might have a large effect in one area, but a small effect, or none at all, elsewhere. The contract must be looked at as a whole to see what (if anything) it provides for the circumstances which have arisen. There is certainly no express term to the effect suggested by Mr Budworth. The test for implied terms is whether they are needed to give business efficacy to the contract: see eg Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2016] AC 742, [16]-[21]. But I see no necessity to imply any term to deal with this in order to give such business efficacy to the contract. Construction of a contract and implication of terms are two different processes: see the BNP Paribas case at [25]-[29].

The other argument (summarised in para [20] above) is that EDF may not have suffered a loss at all. But this is a claim for breach of contract. Proving that a loss has been suffered is no part of the cause of action. The agreement between the parties provided for liquidated damages in case of breach. If this provision was not void as a penalty clause, it answers the argument that EDF has suffered no loss. The parties contracted that this should be the measure of loss, and the sum so produced is accordingly what has to be paid by the company to EDF.

As I have said, in addition to these points on the merits of the three further arguments now sought to be pursued, there is the important point that none of them was made at the hearing before the district judge, although each of them could have been. I have already quoted from the judgment of Henderson LJ in Harvey v Dunbar Assets plc [2017] EWCA Civ 60. At [35] the judge referred to the question

“how far it is open to a debtor to rely, at one of the later stages in the bankruptcy process, on an argument relating to his liability for the debt … which he failed to run on such an application but upon which he later wishes to rely”.

At [37] he referred to

“the approach which the court should adopt when on the hearing of a petition the debtor seeks to rely on arguments which he presented, or had an opportunity to present, at a previous hearing on the merits (usually on an application to set aside the statutory demand).”

So it is clear that the principle endorsed by the Court of Appeal applies not only to cases where an argument has been made on an earlier occasion and rejected, but also to cases where the party had the opportunity to present an argument which he or she failed to do, but later wishes to rely on.

As expressed by Chadwick LJ in Turner v Royal Bank of Scotland [2000] BPIR 683, 694, the principle was put in this way, albeit in the context of a point which had already been made without success at an earlier stage:

“[T]he debtor cannot go back and reargue the very grounds on which he unsuccessfully sought to have the statutory demand set aside. It will require some change of circumstance between the unsuccessful attempt to set aside the statutory demand and the hearing of the petition before the court (on the hearing of the petition) can be asked to go into the question which has already been determined at the hearing of the statutory demand. To hold otherwise would be to encourage a waste of court time, and a waste of the parties’ money; and would defeat the obvious purpose of the statutory scheme.”

There is nothing to indicate that the relevant principle is any different when it is a case of an argument that could have been made but was not. Mr Budworth says that, even so, in the present case what is different now is that the company is legally represented. That is true, but in my judgment it is a long way from the “change of circumstance” which Chadwick LJ (or Henderson LJ in Dunbar Assets) had in mind. As I have already said, Mr Watson chose to represent the company himself rather than spend money on a lawyer. That was his choice. But it would not be right to hold that a party could act in person at the first instance hearing, and then, if the result went against him or her, appeal with legal representation to present the same arguments again, or to present arguments which could have been made but which were not. That would be a recipe for wasting scarce judicial and court resources, exactly what the courts have been concerned about in this part of the law.

I will therefore dismiss this appeal. I add only that the district judge, in my judgment, would have been entitled to take into account the fact that the company at the date of the hearing had made no attempt to pay the costs of £6,300 or so required by my order after the injunction hearing. This well exceeds the £750 required for a winding up petition. Of course, the costs debt was no part of the basis for the petition. But, in my judgment, the district judge was entitled to take this into account in considering whether the company was insolvent and therefore liable to be wound up. I note that no attempt has been made to pay that sum at any point since the decision of the district judge, up to and including today. It remains outstanding. Indeed, Mr Budworth accepted that he could not resist an order which allowed the appeal on condition that that sum was paid. In all the circumstances, I consider that no injustice is being done in dismissing the appeal.