Solicitor Payment of costs by solicitor personally. The appellant firm of solicitors had knowingly taken instructions from a bankrupt without having obtained the consent of the trustee in bankruptcy. The claim had been struck out by reason of the claimant's bankruptcy and the absence of consent from the trustee in bankruptcy. Consequently, the court made a wasted costs order against the appellant. In dismissing an appeal against the wasted costs order, the Queen's Bench Division held that the court had been entitled to find that the appellant had acted improperly, unreasonably and negligently. No formal application for a wasted costs order had been necessary; the case against the solicitors had been made sufficiently clear and the appellant had been given reasonable opportunities to give reasons why a wasted costs order should not be made.
Company Compulsory winding up. The Chancery Division, Companies Court dismissed an application for a validation order under s127 of the in respect of fees paid to the applicant's solicitors, in circumstances where there was no dispute about the petition debt.
Bankruptcy Trustee in bankruptcy. The Chancery Division considered appeals against the dismissal of applications for vesting orders made by the appellants. The first appellant had been the sole registered proprietor of a pier. The pier was subsequently vested in his trustee in bankruptcy who later disclaimed all interest in the pier. The court, in allowing the first appellant's appeal in part, considered SH's contention that the court had the power under s320 of the to make a vesting order in his favour in respect of that part of the pier that constituted his dwelling house and held that the judge's exercise of his discretion under s320(3) of that Act could not stand. SH's application would be remitted for reconsideration of the exercise of the discretion whether to make a vesting order in his favour.
Costs Security for costs. The Commercial Court considered an application by the defendant company for security of costs in a matter where the claimant bank had entered liquidation. The court held that the defendant had failed to satisfy the onus as to whether there was some doubt about the ability of the liquidator to use its assets to pay out the costs, and that the case of Barleycorn Enterprises Ltd, Re, Mathias and Davies (a firm) v Down[ still had effect in Ireland, with the result that the defendant's application would be dismissed.
Conflict of laws Jurisdiction. Having considered the Credit Institutions (Reorganisation and Winding Up) Regulations 2004, SI2004-1045 in accordance with Council Directive (EC)2001-24 (on the reorganisation and winding up of credit institutions), the Supreme Court dismissed the appeal by the Winding-Up Board of Landsbanki Islands hf against the decision of the First Division (Scotland) concerning claims submitted by Landsbanki Islands hf, a credit institution incorporated under Icelandic law, in the administration of its wholly-owned subsidiary, Heritable Bank plc, a credit institution incorporated under the with its registered office in Scotland.
Company Director. The Court of Appeal, Civil Division, held that findings against the ninth and tenth defendants, who had been director and senior employee of a company that had become insolvent following a fraud committed by members of the company by a sham hedge fund arrangement, had been justified on the evidence.
Solicitor Duty. The Court of Appeal, Civil Division, held that a judge, in deciding certain preliminary issues in a bank's claim against the defendant firm of solicitors for breach of trust in connection with a re-mortgage transaction, had been entitled to find that the solicitors had acted in breach of trust in failing to use the claimant's advance to fully discharge the prior charge on the property, but had erred in finding that the breach was limited to the amount of the shortfall which would have been necessary to fully discharge the prior charge.
Insurance Indemnity insurance. The Court of Appeal, Civil Division, held that a judge had been wrong to find that the defendant insurer's liability to the claimant insured under an employer's liability policy had restricted the indemnity that the claimant could claim under the policy for damages paid to an employee who had contracted mesothelioma by proportioning the period of the employee's period of work with the claimant to the period under which the claimant had been insured with the defendant. If an employer was liable to his employee for his employee's mesothelioma following a tortious exposure to asbestos created during an insurance period, then, for the purposes of the insuring clause in the employer's liability policy, the disease was 'caused' within the insurance period.
Practice Post-trial or pre-judgment relief Stay of court proceedings. The claimant was the German subsidiary of the Lehman Brothers. The defendant was a French registered company engaged in the business of shipping and international trade. A claim in contract was issued in the English Commercial Court after proceedings had been commenced in the French courts. The defendant applied for a stay of the English proceedings. The court, in granting the application in part, held that there was a substantial degree of connection between the two proceedings and that proceeding with the English proceedings ran a substantial risk of trespassing on the French proceedings with the consequent danger of irreconcilable judgments.
Contract Construction. In proceedings concerning the proper construction of a senior facilities agreement (SFA) and an intercreditor agreement (ICA), the issue was the level of consent required from the lenders under the SFA to amend the terms of the SFA so as to change, as between senior lenders and second lien lenders, the application of mandatory prepayments payable by a company (Truvo), as the original borrower under the SFA. The Commercial Court held that the proposed amendment did not require the consent of all the lenders but only the consent of the majority lenders and Truvo, which had been given. Accordingly, the purported amendment was valid and effective.