Novoship (UK) Ltd & Ors v Mikhaylyuk & Ors

1. LORD JUSTICE LONGMORE: This is a renewed application for permission to appeal argued ably as ever by Mr Edelman QC. Andrew Smith J has held that a settlement agreement between Novoship and what I will call the Ruperti defendants does not, when the instalments, which were payable under the agreement, were not paid require the full sum to become due and payable.

2. The release clause says that: i. "Upon receipt by the Novoship Companies of the amounts set forth in paragraph 2 above, said payment shall constitute full and final satisfaction of any and all claims whatsoever."

3. What happened was that, after default in paying one or two instalments, the Ruperti defendants got some money, they offered to pay or they did pay and offered to pay the remainder of what was due under clause 2 and Andrew Smith J said that they were entitled to do that and thus performed the settlement agreement.

4. Mr Edelman says that the judgment has an internal inconsistency because the judge said that the purpose of the clause was to incentivise payment, but in fact, on the judge's construction, it does not incentivise payment at all because the Ruperti defendants can just sit back and wait, as they appear to have done, to see if they can get money even though they are in default of clause 2.

5. I put to Mr Edelman that he is seeking to insert words into clause 4, particularly the words "when due" after the word "amounts" which appear in clause 3. I also put to him that it is very odd that if no payment is made under the instalment plan he apparently has an election to decide whether or not to proceed with enforcement, which would be an ex parte process initially. Apparently the release is then discharged.

6. I still remain very puzzled by those two points, but I cannot say that the case is not arguable. Therefore, I will give permission to appeal.