Emmott v Michael Wilson & Partners Ltd, Court of Appeal - Civil Division, May 19, 2017, [2017] WLR(D) 341,[2017] EWCA Civ 367

Resolution Date:May 19, 2017
Issuing Organization:Civil Division
Actores:Emmott v Michael Wilson & Partners Ltd
 
FREE EXCERPT

Appeal No. A3/2016/0432

Neutral Citation Number: [2017] EWCA Civ 367

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

COMMERCIAL COURT

HHJ Waksman QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19.5.2017

Before:

LORD JUSTICE SIMON

LORD JUSTICE DAVID RICHARDS

and

LORD JUSTICE HICKINBOTTOM

- - - - - - - - - - - - - - - - - - - - - - -

Between:

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Charles Samek QC (directly instructed) for the Appellant

Philip Shepherd QC (instructed by Kerman & Co LLP) for the Respondent

Matthew Abraham (instructed by SBP Law) for the Applicants (KHI)

Hearing date: 28 March 2017

- - - - - - - - - - - - - - - - - - - - -

JudgmentLord Justice Simon:

  1. This is the judgment of the court to which all members have contributed.

    Introduction

  2. The appeal is from the order of HH Judge Waksman QC dated 3 February 2016 directing that a sum standing to the credit of the appellant (`MWP') and held by the Court Funds Office (`CFO') in the case of Assaubeyev v. MWP (Court of Appeal reference A2/2014/1245) be paid to the respondent (Mr Emmott) forthwith, with MWP to pay Mr Emmott's costs, summarily assessed at £24,031.50.

    The background and chronology

  3. The background to Mr Emmott's application is the long-running litigation pursued by MWP against Mr Emmott as a former director and quasi-partner of MWP. The underlying disputes are well-known to the parties and have absorbed the attention of this and other courts in many reported decisions: this is the 8th time the parties have appeared before the Court of Appeal during this protracted litigation. In these circumstances, it is unnecessary to burden this judgment with a lengthy recitation of the facts.

  4. It is sufficient for present purposes to record that Mr Emmott is a judgment creditor of MWP by reason of an arbitration award in his favour in the sum of £3,209,613 and $841,213 with interest at 8% to run from December 2013; and that a judgment on the award was made on 26 June 2015 giving leave to Mr Emmott to enforce the award as if it were a judgment of the Court. MWP has not paid this sum, nor the costs of the arbitration which it has also been ordered to pay.

  5. On 4 November 2015 Mr Emmott applied for an order under CPR Part 72.10 that the sum of £317,000 plus interest paid into court and standing to the credit of MWP be paid out to him in part satisfaction of his judgment against MWP.

  6. This sum was the product of two payments into court in relation to separate litigation involving MWP. That litigation involved a claim, by what has been referred to as the Assaubeyev parties, as to the level of lawyers' fees charged by MWP. The Assaubeyev parties sought to tax those fees and were ultimately unsuccessful in their claim to do so. In the course of that litigation, two sums of money were paid into court. The first was a sum paid into court by MWP as security for the costs of appealing the Costs Master's decision. The second was a sum paid into court by the Assaubeyev parties as a condition of the grant of a stay of execution of MWP's judgment pending appeal.

  7. On 20 November 2014, the Court of Appeal dismissed the Assaubeyev parties' appeal; and on 2 December made various consequential orders. These included orders for payment out forthwith to MWP of (i) the sum of £100,000 paid into court by the Assaubeyevs (§5.a) and (ii) all sums paid into court by MWP (§5.b).

  8. On the same day (2 December), form CFO 200 was completed by MWP in relation to the funds in court. This identified the sum as being £316,000 plus interest, MWP as the payee and a bank reference to an account in MWP's name at a branch of HSBC in Covent Garden.

  9. On 5 December 2014, HHJ Mackie QC (sitting as a judge of the Commercial Court) made a freezing order against MWP. This order superseded and discharged a number of prior freezing orders made by the Commercial Court. Materially for present purposes, the order covered sums standing to the credit of MWP in the account at HSBC identified in the 2 December CFO 200 form and the sum of £100,000 held to the order of MWP by the Courts Fund Office under Court of Appeal reference A2/2014/1245.

  10. On 4 November 2015, following the judgment on the award of 26 June 2015, Messrs Kermans issued a notice under CPR Part 72.10 on behalf of Mr Emmott.

  11. Part 72.10 provides:

    (1) If money is standing to the credit of the judgment debtor in court -

    (a) the judgment creditor may not apply for a third party debt order in respect of that money, but

    (b) he may apply for an order that the money in court, or so much of it as is sufficient to satisfy the judgment or order and the costs of the application, be paid to him.

    (2) An application notice seeking an order under this rule must be served on -

    (a) the judgment debtor; and

    (b) the Accountant General at the Court Funds Office.

    (3) If an application notice has been issued under this rule, the money in court must not be paid out until the application has been disposed of.

  12. As Judge Waksman noted, Part 72.10 is the penultimate provision in Part 72 which otherwise deals with third party debt orders (previously known as garnishee orders). There is a short editorial note in the White Book 2017 which reads:

    Effect of rule

    It is not appropriate for the court itself to be the subject of court proceedings and therefore it is not, and never has been, possible to obtain a third party debt order in respect of money in court. However, where there is money in court standing to the credit of the judgment debtor Part 72.10 provides a simple and alternative procedure which a judgment creditor can use. It has been held (unreported) that money paid into court in other pending proceedings is not `money standing to the credit of the judgment debtor in court' as it remains subject to the direction of the court in those proceedings.

  13. At the hearing before Judge Waksman each side had served written evidence: a witness statement in support of Mr Emmott's...

To continue reading

REQUEST YOUR TRIAL