Costs Payment into court. When considering whether the ability of a third party to provide funds could be taken into account in assessing the likelihood that a company could make a payment into court, the question had to be whether the company could raise the money and not whether the relevant shareholder could raise the money. The appropriate criterion to be applied was whether the appellant company had established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition. Accordingly, the Supreme Court allowed the appellant company's appeal against a finding that its appeal against an earlier judgment would be dismissed, on the grounds that it could not make the required payment into court.
Practice Order. The First-tier Tribunal (Tax Chamber) had been entitled to make an order debarring the Revenue and Customs Commissioners from taking further part in proceedings brought against the Revenue by the taxpayer company regarding two VAT assessments and a decision made by the Revenue against the taxpayer. The Supreme Court so held in dismissing the Revenue's appeal against a decision of the Court of Appeal, Civil Division, which had restored the debarring order.
Divorce Financial provision. There was jurisdiction to hear appellant wife's application to 'vary' her undertaking so as to postpone her obligation to secure the respondent's husband's release from his covenants under a mortgage by reference to the case law and given its equivalence with an order for sale under of the Matrimonial Causes Act 1973, variable under s 31(2)(f). Accordingly, the Supreme Court allowed her appeal and remitted the matter to the Family Court to determine whether the jurisdiction should be exercised.
Negligence Contract. The Privy Council ruled that, under Mauritian law, a party to a contract could not sue the other party in delict for non-performance of the contract, if the failure to perform it had amounted to faute lourde.
Practice Pre-trial or post-judgment relief. The Commercial Court dismissed an application by the defendant member of the Bahraini Royal family for a stay of proceedings, concerning a claim for a sum allegedly owed under a oral agreement. The court held that the onus had been on the defendant to show that Bahrain was clearly and distinctly the more appropriate forum and that he had failed to do so.
*The Joint Administrators of LB Holdings Intermediate 2 Ltd v The Joint Administrators of Lehman Brothers International (Europe) and others; The Joint Administrators of Lehman Brothers Ltd v Lehman Brothers International (Europe) (in administration) and others; Lehman Brothers Holdings Inc v The Joint Administrators of Lehman Brothers International (Europe) and others
Insolvency issues decided arising out of collapse of Lehman Brothers group of companies . The Supreme Court decided a number of points of insolvency law, which arose out of the collapse of the Lehman Brothers group of companies in 2008, including that, both statutory interest and non-provable liabilities ranked over subordinated debt in the distribution priorities of an insolvency.
European Union Transport. The Court of Justice of the European Union gave a preliminary ruling in which it decided that arts 5(1)(c) and 7 of Regulation (EC) No261-2004 should be interpreted as meaning that the operating air carrier was required to pay the compensation specified in those provisions in the case where a flight had been cancelled and that information had not been communicated to the passenger at least two weeks before the scheduled time of departure, including in the case where that air carrier, at least two weeks before that time, had communicated that information to the travel agent via whom the contract for carriage had been entered into with the passenger concerned and the passenger had not been informed of that cancellation by that agent within that period.
Practice Judgment. The Chancery Division dismissed the defendant's application for an order that the audio recording of a judgment of a district judge be released because that the transcript of the judgment, which had been provided, had not accurately set out the judgment which the judge had actually delivered in court. The court held that the mere fact that the transcript of the judgment, as approved by a judge, and sent to the parties, was in any way different from the reasons actually pronounced by the judge at the time of giving judgment, was not wrong in law. There was no duty on a judge to approve a transcript limited to the exact terms of the words spoken on the day. It was clear law that a judge, who had given reasons for a decision, might alter those reasons after having made them known to the parties.
*Gard Marine and Energy Ltd v China National Chartering Co Ltd and another; China National Chartering Co Ltd v Gard Marine and Energy Ltd and another; Daiichi Chuo Kisen Kaisha v Gard Marine and Energy Ltd and another
Shipping Charterparty. The appeal concerned the action by the claimant hull insurers against the charterers of a vessel for recovery of the value of the vessel which had been wrecked in a port during a severe storm. The Court of Appeal, Civil Division, allowed the charterer's appeal against the judge's decision that the casualty had been caused by the unsafety of the port in breach of a warranty in the demise charterparty. The Court of Appeal held that in the light of relevant caselaw, the casualty had been caused by an 'abnormal occurrence' with the result that no breach of the safe port warranty had occurred.The Supreme Court upheld the Court of Appeal's decision and dismissed the claimant's appeal.
Documents created during criminal investigation not legally privileged . The Queen's Bench Division substantially granted the claimant Director of the Serious Fraud Office's application for a declaration that documents generated by the defendant company during investigations by its solicitors and forensic accountants into its activities against the background of an ongoing criminal investigation were not subject to legal professional privilege. However, documents indicating or containing the factual evidence presented by a solicitor to the defendant's committee and-or board attracted legal advice privilege.