The Scottish Lion Insurance Company Limited V. Goodrich Corporation And Others
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Reed,Lord President |
| Neutral Citation | [2010] CSIH 34 |
| Court | Court of Session |
| Docket Number | P1981/08 |
| Published date | 28 April 2010 |
| Date | 28 April 2010 |
| Year | 2010 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Reed Lord Mackay of Drumadoon | [2010] CSIH 34 P1981/08 OPINION OF THE COURT (NO.2) delivered by THE LORD PRESIDENT in Petition of THE SCOTTISH LION INSURANCE COMPANY LIMITED Petitioner and Reclaimer; against (FIRST) GOODRICH CORPORATION AND OTHERS Respondents: _______ |
Act: Howie, Q.C.; Morton Fraser LLP
Alt: Ferguson, Q.C., Munro; Simpson & Marwick WS
28 April 2010
[1] We have before us motions for expenses following the disposal by the court of the petitioner's reclaiming motion. For the background circumstances reference should be made to the relative Opinion, [2010] CSIH 6.
[2] In the course of proceedings in the Outer House the Lord Ordinary, with the assistance of parties, identified two issues for debate, namely, "(1) Are the respondents entitled to challenge the decision by the chairman of the creditors' meetings that the statutory majorities, both by number and value, were attained at the meetings of both classes of creditors? and (2) Can it ever be fair to sanction a 'solvent' scheme of arrangement in the face of continuing creditor opposition to having their occurrence cover compulsorily terminated?"
[3] The first of these questions the Lord Ordinary answered in the respondents' favour ([2009] CSOH 127 at paras [35] - [41]). The second question underwent some refinement in the course of the debate (para [42]) but in substance the Lord Ordinary answered that question also in the respondents' favour. As a result he dismissed the petition without inquiry. The petitioner reclaimed the Lord Ordinary's interlocutor, contending that the Lord Ordinary had, in disposing of the second question, acted precipitately in dismissing the petition and that inquiry should be allowed. It did not challenge the Lord Ordinary's determination on the first question. The reclaiming motion was successful. The Lord Ordinary's interlocutor was recalled and the proceedings remitted to him to proceed as accords.
[4] The issues now before us concern the proper practice of this court in dealing with expenses in opposed applications to the court under Part 26 of the Companies Act 2006. These issues may also be relevant to proceedings in analogous circumstances.
[5] The respondents' primary contention was that, notwithstanding the outcome of the reclaiming motion, they should be found entitled to their expenses against the petitioner both of the debate in the Outer House and of the reclaiming motion. The foundation for that contention was a decision of Eve J (In re Thomas de la Rue & Co., Limited and Reduced [1911] 2 Ch 361) where, in an opposed application by the applicant company for reduction of capital, his Lordship ordered that the costs of a single dissentient shareholder (a natural person) be met by the company. He said:
"As I do not wish to discourage shareholders affected by schemes of this kind from appearing at the hearing of the petition to obtain the Court's confirmation and pointing out matters to which the attention of the Court may properly be drawn, and as I have been materially assisted in this case by the criticism of this particular dissentient, I propose to make it a further term of my confirmation that his costs are provided for by the company."
[6] This approach appears to have been followed by Plowman J (In re National Bank Ltd [1966] 1 WLR 819), the order of the court (at page 830) including:
"The bank [the petitioning company] to pay the costs of the opposing shareholders because their opposition could not be regarded as frivolous and the argument on their behalf had been helpful to the court."
[7] The practice of the (English) Companies Court is noted in Boyle & Marshall: Practice and Procedure of the Companies Court (1997) at para 3.6.8 as follows:
"The court has a discretion to order that an unsuccessful opposing creditor or...
To continue reading
Request your trial
-
Re Danka Business Systems Plc
...673, HL(E)Revenue and Customs Comrs v Maxwell [2010] EWCA Civ 1379, [2011] Bus LR 707, CAScottish Lion Insurance Co Ltd v Goodrich Corpn [2010] CSIH 34; 2010 GWD 17-336Sneezum, In re; Ex p Davis (1876) 3 Ch D 463, CASovereign Marine and General Insurance Co Ltd, In re [2006] EWHC 1335 (Ch);......
-
Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others [Court of Session Inner House Extra Division]
...refused the respondents' motion for leave to appeal to the Supreme Court. On 28 April 2010 the First Division determined the expenses ([2010] CSIH 34). On 28 May 2010 the Lord Ordinary ordered the noters to lodge in process a summary note setting out the basis upon which privilege was asser......