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On appeal from [2016] EWCA Civ 20.

If an appellant has permission to appeal, it is wrong to impose a condition that has the effect of preventing him from bringing it or continuing it. For the purposes of ECHR, art 6, there will seldom be a “fair hearing” if a court which has permitted a litigant to bring an appeal then, by indirect means, does not permit him to bring it. The appellant must establish on the balance of probabilities that a proposed condition would stifle the continuation of its appeal.

Even if an appellant appears to have no realisable assets, a condition for payment will not stifle its appeal if it can raise the sum. However, the court must be cautious in respect of a suggestion that a corporate appellant can raise money from its controlling shareholder. The shareholder’s distinct legal personality must remain in the forefront of its analysis. The question should always be whether the company can raise the money and never whether the shareholder can raise the money.

Where a company and/or its owner denies that the necessary funds would be made available to the company, the court should not take that assertion at face value. It should judge the probable availability of the funds by reference to the underlying realities of the company’s financial position and to its relationship with its owner, including the extent to which he is directing its affairs and is supporting it in financial terms.

By a majority, it remits the applications to Patten LJ to determine the appellant’s application for discharge of the condition by reference to the correct criterion.

For judgment, please download: [2017] UKSC 57
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (27 Apr 2017 morning session)