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Powers of appeal court when an appeal is upheld (CPR 52), Do appeal courts have the powers to order reimbursement?
anon45
post Mon, 21 May 2018 - 22:19
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This doesn't relate to a live Pepipoo thread, but I see from: https://forums.moneysavingexpert.com/showth...d.php?t=5844848
that bargepole has claimed that paying a judgment in favour of a PPC following an erroneous ruling by a district judge makes appealing futile in that there is allegedly no method in law to obtain an order from a circuit judge to recover monies paid following an original judgment even if the appeal is successful.

Putting to one side the question of whether the OP in that MSE thread (who lost, despite RK liability not applying, based on an erroneous finding of fact that he was the driver) would be wise to appeal, is this correct as a matter of law?

I understand from the media that Laura Jopson, upon winning her appeal, successfully obtained an order from the appeal court ordering that the money she had paid to the PPC following the erroneous original ruling (as quashed by the circuit judge on appeal) be repaid, along with her additional costs associated with the appeal. Whilst Mr. Beavis of course lost his appeal, I was led to believe that, had he succeeded, PE would have been ordered to repay the (edit) £85 he paid them immediately following the original ruling by HHJ Moloney.

Appealing does not act as a stay of execution (which judges are typically reluctant to grant), so, if correct, it would leave motorists, and indeed all claimants and defendants, who do lose thanks to a misdirected judge (or thanks to a default judgment being obtained by nefarious means), and who wish to appeal, without any adequate remedy, if appealing is essentially futile.

The Civil Procedure Rules state:
QUOTE
Appeal court’s powers
52.20

(1) In relation to an appeal the appeal court has all the powers of the lower court.

(Rule 52.1(4) provides that this Part is subject to any enactment that sets out special provisions with regard to any particular category of appeal. Where such an enactment gives a statutory power to a tribunal, person or other body, it may be the case that the appeal court may not exercise that power on an appeal.)

(2) The appeal court has power to—

(a) affirm, set aside or vary any order or judgment made or given by the lower court;

(b) refer any claim or issue for determination by the lower court;

© order a new trial or hearing;

(d) make orders for the payment of interest;

(e) make a costs order.

I interpret 52 2(a) and (2(e) to give the appeal court the power to order that any respondent, PPC or otherwise, pay a successful appellant the amount the appellant originally paid to the respondent following the original ruling in favour of the respondent, or to make such other order as it considers just and appropriate under all the circumstances.

Thoughts?

This post has been edited by anon45: Tue, 22 May 2018 - 04:33
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post Mon, 21 May 2018 - 22:19
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southpaw82
post Mon, 21 May 2018 - 22:44
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QUOTE (anon45 @ Mon, 21 May 2018 - 23:19) *
there is allegedly no method in law to obtain an order from a circuit judge to recover monies paid following an original judgment even if the appeal is successful.

The House of Lords in Nykredit v Erdman thought otherwise.

QUOTE
The effect of the decision of this House given last June was that some of the money previously paid by the defendants to the plaintiff as damages and costs, pursuant to orders of the Judge and of the Court of Appeal, fell to be repaid to the defendants. This has given rise to the question whether, when ordering repayment, the House has jurisdiction to award interest on the money ordered to be repaid.

I am in no doubt that the answer to this question is yes. The court has no general, inherent power to order the payment of interest. But the situation now under consideration is not directed at requiring a defendant against whom the plaintiff has a cause of action to pay interest on money to which the plaintiff's cause of action entitles him. Nor is it directed at requiring him to pay interest on unpaid costs. Rather, when ordering repayment the House is unravelling the practical consequences of orders made by the courts below and duly carried out by the unsuccessful party. The result of the appeal to this House was that, to the extent indicated, orders made in the courts below should not have been made. This result could, in some cases, be an idle exercise unless the House were able to make consequential orders which achieve, as nearly as is reasonably practicable, the restitution which this result requires. This requires that the House should have power to order repayment of money paid over pursuant to an order which is subsequently set aside. It also requires that in suitable cases the House should have power to award interest on amounts ordered to be repaid. Otherwise the unravelling would be partial only.

This power seems to me to fall squarely within that range of powers which are necessarily implicit if a court of law possessed of appellate functions is to carry out its prescribed functions properly. It is, as such, a power derived from what is usually referred to as the inherent jurisdiction of the court. It is a power equally possessed by the Court of Appeal consequential upon orders made by it. The only surprising aspect of this power is that its existence has not previously arisen for decision.


It would be absurd if it were otherwise.

There’s also the standard restitutionary remedy as in AB v British Coal Corp:

QUOTE
It seems to me quite clear that, during the period from 11 March to 21 December 2005, the Department was making payments of OROS costs pursuant to Sir Michael's orders. The decision of the Department not to apply for a stay meant that the court orders remained in force. If, at any time during the relevant period, the Department had ceased to make payments, or had reduced the level of payments made, it would have been open to the claimants to go back to Sir Michael and contend that the Department was in breach of his orders. The Department would have had no answer to that.

I accept the Department's contention that there is nothing inconsistent in the existence of concurrent obligations to make payments under the compulsion of court orders and also pursuant to an agreement between the parties. The fact is that the March 2005 agreement would never have been made, had it not been for the existence of the court orders. The effect of the agreement was that the court orders remained in place and the Department were under a compulsion to pay in accordance with their provisions.

That being the case, the circumstances prior to 21 December 2005 fall squarely within the principles set out in the passage from Goff and Jones to which I have previously referred. The claimants' solicitors have enjoyed the benefits of the overpayments made to them, at the Department's expense. In order to prevent the claimants' solicitors from being unjustly enriched, the Department has a right to recover the monies overpaid, together with interest thereon.


This post has been edited by southpaw82: Mon, 21 May 2018 - 22:50


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