Key Facts
- •Credico Marketing Limited (Credico) sued Benjamin Gregory Lambert and S5 Marketing Limited (defendants) for breach of restrictive covenants in a trading agreement.
- •Defendants initially had solicitors but later represented themselves.
- •A High Court judge ordered defendants to pay costs; they failed to do so.
- •The defendants' Amended Defence was struck out due to non-payment of costs.
- •Defendants appealed, seeking to adduce fresh evidence of impecuniosity and arguing the strike-out was wrong.
- •The Court of Appeal previously ruled post-termination restraints unenforceable in a related case.
Legal Principles
A claim of impecuniosity to avoid a debarring order must be supported by detailed, cogent, and proper evidence.
Michael Wilson v Sinclair [2017] EWHC 2424 (Comm), paragraph 29(4)
The Ladd v Marshall factors can be applied less strictly in an interlocutory context.
Ladd v Marshall (implicitly referenced)
An unless order’s consequences (e.g., striking out a defence) will not be overturned unless good reason exists.
Pugh v Cantor Fitzgerald International [2001] EWCA Civ 307 (implicitly referenced)
Outcomes
Application to adduce fresh evidence refused.
Evidence of impecuniosity should have been presented earlier; the provided evidence was insufficient and lacked explanation for the delay.
Permission to appeal refused.
No real prospect of success; the judge's decision was justified based on the evidence and defendants' conduct.
Concern about the effect of the unless order on the economic tort claims, in light of the previous Court of Appeal ruling, was allayed.
Credico's claim did not solely rely on the unenforceable post-termination restraints; the defendants could argue unenforceability on causation or quantum of damages.
Costs awarded against the defendants.
Defendants' conduct in the litigation.