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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> P & O Ferrymasters Ltd v Radicon Ltd [2001] EWCA Civ 1671 (29 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1671.html Cite as: [2001] EWCA Civ 1671

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE JACK)

		Royal Courts of Justice Strand London WC2 Monday, 29th October 2001

Monday, 29th October 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal brought by Radicon Ltd, formerly European Road Services Ltd. I have been addressed this morning by Mr Tullett, a director of Radicon, and I have permitted him to address me on behalf of the company.
2. The dispute out of which this application for permission arises involves essentially a claim by Radicon's factoring financiers, Assetline Ltd ("Assetline"), itself a subsidiary of the parent company Fairfax Gerald Holdings Ltd ("Fairfax"). Another factoring company involved at one time in the litigation was Silverburn Finance UK Ltd ("Silverburn"), but they withdraw from the litigation on the first day of trial. Silverburn had started to finance Radicon through factoring its invoices at a later stage than Assetline and Fairfax. But whatever the complications of that situation their withdrawal from trial meant that the judge, Jack J, did not have to rule about them. At the end of the day, therefore, the issue at trial was one simply between Radicon and Assetline/Fairfax, and was whether the Assetline/Fairfax claim in debt, either under their client agreement with Radicon or under a debenture signed by Mr Tullett on behalf of Radicon, entitled them to all or some of a sum of £272,000-odd which was in court representing the debts of P & O Ferrymasters Ltd owed to Radicon.
3. The judge found that Assetline/Fairfax's claim against Radicon amounted to at least the sum of £272,000-odd. He held that Assetline/Fairfax were entitled to the whole sum in court, both under the client agreement and under the debenture. In its application for permission to appeal Radicon raises no point of principle against the conclusions of the judge, and also states that the figures calculated by the judge are not contested, as indeed Mr Tullett has confirmed to me this morning.
4. Nevertheless, at any rate with the aid of new evidence which Radicon asks permission to put before the Court of Appeal on appeal if permission were granted to it, two points seem to be raised. One is a point of mitigation, and the other is a specific point about a sum of some £37,000 owed by Nipress to Radicon.
5. Turning first to the point of mitigation, Mr Tullett's submission appears to be this. If the judge's conclusion as to the debt owed by Radicon to Assetline/Fairfax had been accepted back in 1997 as the true figure on account, then Assetline/Fairfax would have succeeded in a negotiation then being carried on with Silverburn to sell its book debts under its arrangements with Radicon to Silverburn, who would thus have taken over the factoring of Radicon as the sole financing company concerned. If that had happened, Mr Tullett submits, then all the difficulties which befell Radicon as a result of its relations with Assetline/Fairfax would have been avoided, and his company would have survived its difficult times.
6. There is, however, no sign at all of this issue having been debated before the judge. There is no reference to it whatsoever in his judgment. It appears to me to be a new point raised for the first time on this application, and is sought to be supported by new evidence which Radicon seeks to put before the court, including a statement of Silverburn, dated 31st May 2001, that is to say, dated nine days after Jack J gave judgment on 22nd May 2001.
7. Quite apart from those difficulties I cannot see how any question of mitigation of this kind arises as a defence to the claim which Radicon faced from Assetline/Fairfax. That was a claim in debt either under the client agreement or under the debenture or, as the judge held, under both, and no question of mitigation arises. The court is simply not concerned with the reason why a negotiation between Assetline/Fairfax and Silverburn may or may not have succeeded or failed back in 1997.
8. Therefore it seems to me that it would be wrong to admit the new evidence relevant to this point of mitigation, wrong to consider it as being a point which could support an appeal, and in any event the principle of mitigation invoked has no bearing or relevance to the issues the judge had to decide which were issues in debt.
9. For all those reasons it seems to me that the mitigation point raises no real prospect of success on appeal. There is, on that ground, no other compelling reason why permission to appeal should be granted, those being the tests for granting permission to appeal. The mitigation point must fail as supporting this application.
10. The other point raised by Mr Tullett is the point about the Nipress debt of some £37,000. Mr Tullett's submission appears to be that payment of this debt, which Nipress has yet to make, awaits the outcome of this litigation, which will guide Nipress whether to pay Radicon or Assetline/Fairfax. The point, as I say, appears to be that the judge ought to have taken it into account as discounting the balance of account which Assetline/Fairfax was claiming against Radicon at trial, presumably on the basis that Assetline/Fairfax could be already treated as seised of this amount. Mr Tullett has very frankly told me (otherwise I would not know) that an amended defence to raise, amongst other points, this Nipress point, had been drafted and put before the judge at trial but that permission to amend had been refused by the judge. That confirms my understanding from reading the judge's judgment which is that the Nipress point was not in any event a point before the judge. It is not, it seems to me, a point that can be raised on appeal. It would again need, as Mr Tullett recognises, the submission of new evidence to get it on its feet before the Court of Appeal. That was obviously evidence which was available to Radicon at trial because it was the subject matter of the draft amended defence which the judge refused to allow. For that reason, and also because it never figured before the trial because of the judge's decision in his discretion not to permit it to do so, it seems to me that it is not a point that can be raised on appeal. It raises no real prospect of success on appeal or gives rise to any other compelling reason why an appeal should be allowed.
11. In any event inasmuch as I understand the Nipress point, it remains either as a debt which Assetline/Fairfax can claim, possibly, or one that Radicon, or the receiver of Radicon can claim, the details of it being not within my knowledge. If it is a debt to which Assetline/Fairfax might be entitled, that would depend upon its balance of account against Radicon being sufficiently great to encompass it. The judge did not have to decide how great Radicon's debt to Assetline/Fairfax was, he only had to decide whether it exceeded £272,000. He makes that clear in his judgment.
12. Assetline/Fairfax can look to any quarter to which it may be entitled to clear the debts which it is owed by Radicon. At any rate the Nipress point, for the reasons which I have already expressed, lies outside the purview of the trial below, and cannot, as I have said, be brought within an application for permission to appeal to the Court of Appeal.
13. For those reasons it seems to me that this application must fail.
(Application refused; no order for costs).