Appeal conditional on payment into court of GBP 3.64 million judgment
16 November 2015
In Goldtrail Travel Ltd v Aydin & ors  EWCA Civ 926, 11 June 2015, the court granted conditional permission to appeal, ordering Turkish airline Onur Air Tasimacilik AS (Onur Air) to pay the judgment sum of GBP 3.64 million into court as a condition of being allowed to continue with its case. There was a "compelling reason" for imposing this condition: Onur Air had stopped flying to the UK and Floyd LJ considered it would be unlikely to pay the judgment sum if its appeal failed. Companies should be aware of this decision when seeking permission to appeal, especially if they are considering changes to their UK business activities after trial.
The High Court found Onur Air liable for dishonestly assisting with the misapplication of money from Goldtrail Travel Limited (Goldtrail), but stayed payment of the judgment sum of GBP 3.64 million until after any appeal. However, Goldtrail argued that the airline, as a condition of appeal, should pay the judgment sum into court because it had stopped flying to the UK after the first court hearing and no longer had any assets there. Floyd LJ, agreeing with Goldtrail, made Onur Air's appeal conditional on payment of the entire GBP 3.64 million. Onur Air applied to have this set aside.
- there was a real risk that the claimant would be unable to recover the judgment sum if successful;
- the defendant had been in breach of a court order to pay the judgment sum;
- the defendant had not been forthcoming about its financial affairs;
- the appeal would not be stifled if the condition was imposed; and
- the defendant had the resources to fund the costs of the appeal and pay the judgment sum.
Perhaps this is why it is relatively rare to see conditions imposed, especially those requiring payment of the entire judgment sum into court. Indeed, Floyd LJ was clear that the court would only impose conditions where there is a sufficiently compelling reason for doing so. Onur Air had removed its assets from the jurisdiction and was not likely to cooperate with payment of the judgment sum if it lost the appeal, and, crucially, Floyd LJ did not think that he was obstructing its appeal by imposing the condition (despite Onur Air's protests that it had cash flow difficulties).
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