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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 >> Esso Petroleum Company Ltd v Miller & Ors [2001] EWCA Civ 1484 (8 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1484.html Cite as: [2001] EWCA Civ 1484

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(His Honour Judge Walton)

		Royal Courts of Justice Strand London WC2
		Monday, 8th October 2001

1. LORD JUSTICE RIX: This is a renewed application for permission to appeal, with a further application to admit new evidence, made by Mrs Cecilia Miller in connection with an application which she lost before His Honour Judge Walton to set aside a judgment entered against her by consent in an action which Esso Petroleum Company Limited brought against her ("the 1994 action"). The judgment entered by consent was made as long ago as 2nd September 1997, and it was only on 6th November 2000 that her application to set that judgment aside was made, although it had been foreshadowed somewhat earlier in a draft re-amended pleading of 4th September. Given the three-year delay in which the judgment by consent was left to rest unattacked, it is perhaps not surprising that the judge concluded that, even if he had had jurisdiction to set it aside (which he thought he did not), he would not do so in his discretion.
2. Having said that, the case is an unusual one and, minded as I am to accede to this application, I will take just a moment to indicate what is unusual about it and why I would grant Mrs Miller permission to appeal.
3. Back in 1993 Mrs Miller signed a licence agreement under which she became the licensee from Esso of a petrol station called, I think, the Collingwood Station. Her husband, Eric, and brother-in-law, Keith Miller, were respectively the licensees from Esso of two other stations. The case which Mrs Miller seeks to make upon her application to set aside the judgment was that she only became a licensee at the express request of Esso, who wished to grant to her husband and brother-in-law the licence on this third petrol station but were prevented from doing so by Esso's own rule against licensing more than one station to any one licensee. Her case, on her evidence, is that when she queried the effect of putting her signature to the licence document she was assured that this was simply a matter of paperwork and that she would not be held liable on the licence, for instance to pay for any petrol provided to that station. She said that this all happened in her kitchen in the presence of her husband and an Esso manager called Simon Raggett.
4. The difficulty with her case of 2000, which is that she was merely entering into the licence agreement as agent for her husband and brother-in-law and on terms that she should not be held liable on the licence, is that it is inconsistent of course not only with the consent judgment against her but also with her original pleading in the 1994 action under which she accepted that she was a principal to the transaction and that she had received certain representations as to pricing and profits through the agency of her husband and brother-in-law.
5. Nevertheless, it has to be said that her evidence on the facts has not been opposed by any contrary factual evidence from Esso, although they had a year to do so; that there were at any rate some documents before the judge which gave support to her claim; and that there are further documents - a draft statement of Mr Raggett which has come forward on disclosure and also a transcript of a telephone conversation between Mr Raggett and Keith Miller - which could well be the basis of submissions that they go far to confirm her present case.
6. In these circumstances the judge had to consider, and this court on this application has to consider, two questions: one is the jurisdiction question and one is the question of discretion. The jurisdiction question decided against Mrs Miller turned on the judgment of this court in Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185, in which a distinction was made between a judgment by consent which followed a binding contract between the parties to the effect of the judgment, and a judgment by consent which was merely an acquiescence on the part of the party consenting to that judgment. The judge below considered that in Mrs Miller's case the argument fell for her on the wrong side of that distinction. But for myself I would see a realistic prospect that this court could come to a different conclusion on appeal.
7. Turning to the more difficult question of discretion, the way that Mr Schmitz puts it is that when the matter was argued before the judge Esso was unwilling to accept the truth of Mrs Miller's evidence that she had entered into the licence merely as a nominee and on the express promise that she would not be held liable to her signature. Counsel acting for Esso on that occasion put forward as an explanation for Esso's lack of evidence to contradict Mrs Miller's factual case the hypothesis that Esso might well have considered it simply not proportionate to the weakness of the application to seek to deal with it on its facts. In my judgment Mr Schmitz is entitled to submit that in those circumstances, in the light of the documents supporting Mrs Miller's case that were before the judge below and the additional documents (if the Court of Appeal should be willing to admit them) now put before us as new evidence, there is a realistic prospect of the Court of Appeal concluding that Mrs Miller's evidence should have been accepted and that therefore the judge should have started his exercise of discretion upon the basis that there was a case on the facts under which, in justice to Mrs Miller, she was entitled, if she won on the jurisdictional point, to an exercise of discretion in her favour and, moreover, that Esso knew it.
8. One further issue that goes to discretion which has concerned me in the course of Mr Schmitz's submissions this morning is the question of what prejudice Esso might suffer if the consent judgment was set aside. Of course it would lose its judgment against Mrs Miller, but that has never been executed because Esso recognises that there is an outstanding counterclaim, based upon the alleged representations concerning profits and pricing, which has yet to be adjudicated.
9. Another factor which was not discussed in the judgment below but which has occurred to me is the possibility that, if the judgment against Mrs Miller were set aside, Esso would be too late to seek a judgment on its 1994 claim against the husband and/or brother-in-law. Of course it is up to Esso to take a limitation point, and it said nothing along those lines to the learned judge. In any event, one of the new documents put before the court today (which the full court may, if it so decides, give permission to admit into the case) is an open offer from the Millers' solicitors, which Mr Schmitz has informed me stands to this day, that the Miller brothers would be willing to stand in Mrs Miller's place and to accept any liability that they have (subject no doubt to the counterclaim) as the true licensees under the licence of the Collingwood Station.
10. In all these circumstances it seems to me that the matter should go to the full court and that there is a realistic prospect of success for Mrs Miller on appeal. But I would leave it to the full court upon that appeal to make its own decision as to whether or not to admit the new evidence which is put before us.
11. SIR MARTIN NOURSE: I agree and do not wish to add anything of my own.
Order: application for permission to appeal granted; notice of appeal to be served within 7 days; time estimate ½ day; costs in the appeal.