Olympic Airlines SA v ACG Acquisition XX Llc
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MOORE-BICK
- LORD JUSTICE RIMER
Areas of Law
- Civil Procedure
- Conflict of Laws
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
Olympic Airlines SA (Olympic) appealed Teare J's order regarding costs payable to ACG Acquisition XX LLC (ACG). Olympic paid the required sums into court but failed in its appeal. Olympic later sought release of these sums, arguing Greek law precluded payment. The court examined whether an issue estoppel existed, preventing Olympic from making this argument, and concluded that it did. The court found no special circumstances to justify departing from the issue estoppel and ordered the sums to be paid to ACG.
Judgment
Lord Justice Rimer :
Introduction
The matter before the court is a sequel to two previous orders that the court has made in relation to an appeal by Olympic Airlines SA (‘Olympic’) against Teare J’s order made in the Commercial Court on 1 June 2012. The respondent is ACG Acquisition XX LLC (‘ACG’). The first order was made by Rix LJ and me on 17 December 2012. That order dismissed Olympic’s application for a stay of part of Teare J’s order; and, more relevantly, made Olympic’s permission to appeal conditional upon its paying into court: (i) by 28 December 2012, £82,500 as security for ACG’s costs of the appeal; and (ii) by 2 January 2013, the £500,000 which Teare J had ordered Olympic to pay ACG on account of its costs of the proceedings. The order provided that, in default of the payment of both sums, Olympic’s permission to appeal would be revoked. Olympic paid both sums into court in time and so its permission was not revoked.
Olympic’s appeal was heard on 15 and 16 January 2013 by a court comprising Rix, Tomlinson and Kitchin LJJ. By an order made on 17 April 2013, that court dismissed the appeal with costs, such costs including ACG’s costs of the applications the subject of the prior order of December 2012. The order also gave Olympic liberty to apply by 17 May 2013 for the release to it of the two sums of £500,000 and £82,500 paid into court pursuant to the December order. Olympic made such an application. What is now before the court is a preliminary issue in that application.
Why should Olympic be entitled to ask the court to decide whether to order the repayment of money it paid into court in compliance with the terms of an order imposed upon it as a condition of being permitted to pursue its ultimately dismissed appeal? To answer that, I must return to the court’s judgments and order delivered and made on 17 December 2012.
The judgments and order of 17 December 2012
I shall set the scene by quoting the opening paragraphs of my judgment, one with which Rix LJ agreed ( [2012] EWCA Civ 1659 ):
‘1. Earlier this year, Teare J, in the Commercial Court, presided over the trial of a claim and counterclaim in consolidated proceedings in which the claimant is [ACG], a Delaware company, and the defendant is [Olympic], a Greek company in special liquidation.
2. Olympic, a state-owned enterprise, was placed into such liquidation under the provisions of Greek insolvency law by an order of the Court of Appeal in Athens on 2 October 2009