Re Peak Hotels and Resorts Ltd
| Jurisdiction | England & Wales |
| Neutral Citation | [2019] EWHC 282 (Ch) |
| Date | 2019 |
| Year | 2019 |
| Court | Chancery Division |
Solicitor - Order for costs - Success fee - Proceedings brought by liquidator - Court recognising foreign liquidation as foreign main proceeding - Foreign representatives bringing application - Court making costs order against foreign representatives in respondent’s favour - Whether success fee respondent obliged to pay to its solicitors recoverable from foreign representatives as part of costs order - Whether in bringing proceedings foreign representatives acting in capacity of liquidator of company being wound up in England and Wales -
The company went into liquidation in the British Virgin Islands. Its liquidators sought determination of whether certain sums of money were subject to valid charges in favour of C Ltd, a matter which it was agreed should be dealt with by the English court. The liquidation having been recognised by the English High Court as a foreign main proceeding under Schedule 1 to the Cross-Border Insolvency Regulations 2006, the liquidators brought certain applications relating to the charges, to which C Ltd was the respondent. A costs order was subsequently made against the liquidators in those proceedings. A 100% success fee which C Ltd was obliged to pay its solicitors under a conditional fee arrangement was, in principle, recoverable from the liquidators as part of that order if, for the purposes of article 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 4 and Saving Provisions) Order 2013F1, the liquidator’s applications constituted proceedings brought by a person acting in the capacity of a liquidator of a company which was being wound up in England and Wales.
On C Ltd’s application for determination of that issue—
Held, that recognition under the Cross-Border Insolvency Regulations 2006 meant that the foreign liquidation was treated in many respects by the court as if the foreign company was in liquidation in England and Wales, and allowed the foreign representative to obtain certain forms of relief; that, none the less, the liquidation remained expressly a foreign proceeding and the liquidator a foreign representative; and that, accordingly, a foreign representative of a foreign main proceeding did not act in the capacity of a liquidator of a company which was being wound up in England and Wales for the purposes of article 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 4 and Saving Provisions) Order 2013 (post, paras 70–72).
The following cases are referred to in the judgment:
Addleshaw Goddard llp v Wood
Bibby (James) Ltd v Woods and Howard [
Born, In re; Curnock v Born [
Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc
Clifford Harris & Co v Solland International Ltd (No 1)
Clifford Harris & Co v Solland International Ltd (No 2)
Curry v Rea [1937] NI 1
Fairfold Properties Ltd v Exmouth Docks Co Ltd (No 2) [
Faithfull v Ewen (
Fibria Celulose S/A v Pan Ocean Co Ltd
Fuld, decd (No 4), In the Estate of [
Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd
Glasgow v ELS Law Ltd (Bar Council of England and Wales intervening)
Greer v Young (
Groom v Cheesewright [
Guy v Churchill (
Hammonds v Thomas Muckle & Sons [
Hanlon v The Law Society [
Haq v Singh
Hartmann Capital Ltd, In re
Haymes v Cooper (
Henderson v Henderson (
Henley v Bloom
Hyde v White [
LCP Retail Ltd v Segal
Mercer v Graves (
Metall Market 000 v Vitorio Shipping Co Ltd
Meter Cabs Ltd, In re [
Morris, In re [
Moxon v Sheppard (
Robarts v Jefferys (
Roberts Petroleum Ltd v Bernard Kenny Ltd [
Rubin v Eurofinance SA
Peak Hotels and Resorts Ltd, In re
Peak Hotels and Resorts Ltd, In re
Peak Hotels and Resorts Ltd v Tarek Investments Ltd
Safety Explosives Ltd, In re [
Scholey v Peck [
Singularis Holdings Ltd v PricewaterhouseCoopers
Taylor Stileman & Underwood, In re [
Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd)
No additional cases were cited in argument.
APPLICATIONS
By an application notice dated 27 September 2016, the joint liquidators, Russell Crumpler and Sarah Bower, of Peak Hotels and Resorts Ltd, a company incorporated in the British Virgin Islands, sought a determination as to whether and to what extent certain sums of money were subject to charges granted by the company in favour of Candey Ltd. By a costs judgment, given on 5 December 2017, Judge Raeside QC ordered that the liquidators pay 80% of Candey Ltd’s costs. Candey Ltd subsequently sought a determination as to whether it was entitled to recover from the joint liquidators a success fee that it was obliged to pay to its legal representatives, on the basis that the exemption in article 4(c) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 5 and Saving Provisions) Order 2013 (SI 2013/77) applied. On 4 May 2018 Hildyard J ordered that that application be heard with an application for a determination as to whether Candey Ltd was entitled to a charge over the proceeds of settlement moneys realised by the company.
The facts are stated in the judgment, post, paras 5–33.
David Lord QC, Daniel Saoul QC and Stephen Ryan (instructed by
David Holland QC and Stephen Robins (instructed by
The court took time for consideration.
15 February 2019. ANDREW HOCHHAUSER QC handed down the following judgment.
Introduction1 In this matter the court has to determine two separate applications between Candey Ltd, a firm of solicitors (“Candey”), and Mr Russell Crumpler and Mr Christopher Farmer
(1) The determination of the following issue directed to be determined by para 8 of the order of Judge Raeside QC dated 5 December 2017 (“the exemption issue”), namely: whether, for the purposes of Candey seeking recovery of a success fee under a conditional fee agreement (“CFA”) dated 8 May 2016 with Candey Law llp (“Candey llp”), the liquidators’ application by application notice dated 27 September 2016 (“the liquidators’ application”) amounts to “proceedings” within the definition of article 4(c) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 5 and Saving Provisions) Order 2013 (“the LASPO Order”).
(2) The determination of Candey’s application by application notice dated 17 April 2018 (“the lien application”), seeking a charging order under section 73 of the Solicitors Act 1974. The lien application came before Hildyard J on 24 April 2018, pursuant to which directions were given in an order dated 4 May 2018. Pursuant to paragraph 4 of that order, the lien application was listed together with the hearing of the exemption issue.
2 The evidence before me in relation to the exemption issue and the lien application consisted of the fifth affidavit of Mr Crumpler sworn on 24 May 2018 (“Crumpler 5”), with two exhibits RC5 and RC6, on behalf of the liquidators, and the sixth witness statement of Mr Ashkhan Candey dated 14 June 2018 (“Candey 6”) on behalf of Candey. There were also references made to evidence that had been filed at earlier hearings, namely the first to third affidavits of Mr Crumpler and the first to fourth witness statements of Mr Ashkhan Candey and the first witness statement of John Brisby QC (“Brisby 1”), who had been instructed by Candey as leading counsel on behalf of PHRL.
3 At the hearing, Candey was represented by Mr David Lord QC, leading Mr Daniel Saoul and Mr Stephen Ryan and the liquidators were represented by Mr David Holland QC, leading Mr Stephen Robins. I am grateful to them for their helpful written and oral submissions.
The relevant background4 This matter has a long and contentious history and arises against a backdrop of extensive previous litigation, including two appeals to the Court of Appeal, the first of which was heard on 21 June 2018, with...
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