Kempe and Another v Ambassador Insurance Company ((in Liquidation))
| Jurisdiction | UK Non-devolved |
| Judgment Date | 19 November 1998 |
| Date | 19 November 1998 |
| Docket Number | Civil Appeal No. 13 of 1995 |
| Court | Privy Council |
In the Court of Appeal for Bermuda
Astwood, P.
da Costa, J.A.
Kempster, J.A.
Civil Appeal No. 13 of 1995
and
Andrew A. Martin for Mello, Hollis, Jones & Martin for the Appellants.
Alan Dunch for Appleby, Spurling & Kempe for the Respondents.
R v Bloomsbury and Marylebone County CourtUNK [1976] 1 all ER 897
Lee v Showmen's Guild of Great BritainELR [1952] 2 QB 329
Companies (Winding Up) Rules, rule 77, s. 157
Insolvency — Appeal against ruling that terms of Scheme of Arrangement precluded grant of extension of time for leave to appeal — Appeal out of time
Kempster, J.A.
This is an appeal, brought by leave, against the ruling of Ground J, made on 1 May 1995, that the terms of a Scheme of Arrangement sanctioned and given statutory effect by Order of the Court pursuant to section 99 of the Companies Act 1981 precluded the grant by the Court to Ambassador Insurance Co. (in liquidation) a Scheme Creditor, of any extension of the time limited by the Scheme for seeking leave to appeal against the rejection of its claim in the liquidation of Mentor Insurance Ltd. The order directs ‘3. that the Joint Liquidators … conduct the liquidation of Mentor and … fulfill their duties and obligations in accordance with the terms of the Scheme.’
The learned judge's conclusion was based on the terms of clauses 2.3.1 and 2.4.1 the material parts of which provide that any Scheme Creditor receiving a written statement giving the liquidators' reasons for the rejection of a claim in whole or in part ‘… may apply to the Court in the manner provided by the rules (referring, I believe, to rule 6 of the Companies Winding-up Rules) for an order that any decision of the Joint Liquidators relating to the assessment of that Scheme Creditor's claim be reversed or varied … Such application must be made by a summons filed with the Court within 21 days of the Scheme Creditor receiving the written statement …’ And critically that ‘… Each Scheme Creditor having a Scheme Claim or portion thereof which is rejected in whole or in part by the Joint Liquidators … shall, unless a summons is filed in accordance with clause 2.3.1, have no further right to participate in the Scheme to the extent of the rejection.’ Clause 2.3.2 states that ‘Save as provided in the Scheme no Scheme Creditor shall...
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