Compagnie Noga D'importation Et D'exportation SA v Australia & New Zealand Banking Group Ltd. & Ors [2002] EWCA Civ 1142 (31 July 2002)

Compagnie Noga D'importation Et D'exportation SA v Australia & New Zealand Banking Group Ltd. & Ors [2002] EWCA Civ 1142 (31 July 2002)

It is not a proper exercise of discretion for a first instance judge to include in a declaration a factual finding (here, that $100 million was agreed) solely to require a respondent to seek permission to appeal on that finding when the substantive order is in the respondent's favour. The form of the declaration should reflect the issues necessary for the order, not be used to affect procedural rights under the CPR. A respondent defending a judgment does not require permission to challenge factual findings unless seeking to vary the order.

Citation
[2002] EWCA Civ 1142
Parties
Appellant/claimant: Compagnie Noga D'Importation Et D'Exportation SA; Respondent/defendant: Australia & New Zealand Banking Group Ltd & ors (SJ Berwin defendants); Interested Party: Federal Government of Nigeria
Jurisdiction
England and Wales
Judgment Date
31 July 2002
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From Commercial Court (queen's Bench Division) Regarding Form of Declaration/order
Outcome
Appeal allowed
Legal Topics
Appeals, Declaratory Relief, Settlement Agreements, Civil Procedure Rules (cpr), Respondent's Notice
Civil Procedure Commercial Law Appeals Declaratory Relief Settlement Agreements Civil Procedure Rules (cpr) Respondent's Notice

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Parties

Compagnie Noga D'Importation Et D'Exportation SA

Appellant/claimant

Australia & New Zealand Banking Group Ltd & ors (SJ Berwin defendants)

Respondent/defendant

Federal Government of Nigeria

Interested Party

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From Commercial Court (queen's Bench Division) Regarding Form of Declaration/order

Legal Issues

  1. 1 Whether a court should grant a declaration on a factual finding not necessary to the formal order, specifically that $100 million was agreed, when the substantive outcome was that no binding settlement existed; whether the form of the declaration can or should affect the procedural rights of a respondent to appeal or require permission to appeal on factual findings; the proper scope of a respondent's notice under the CPR.

Ratio Decidendi

It is not a proper exercise of discretion for a first instance judge to include in a declaration a factual finding (here, that $100 million was agreed) solely to require a respondent to seek permission to appeal on that finding when the substantive order is in the respondent's favour. The form of the declaration should reflect the issues necessary for the order, not be used to affect procedural rights under the CPR. A respondent defending a judgment does not require permission to challenge factual findings unless seeking to vary the order.

Court Disposition

Appeal allowed

Orders

  • Declaration including the factual finding that $100 million was agreed set aside; declaration to be limited to 'no settlement' without reference to the $100 million agreement.