References: [2009] EWCA Civ 632, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349
Links: Bailii, Times
Coram: Lord Justice Ward, Lord Justice Stanley Burnton and Sir John Chadwick
The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The statutory prohibition against creditors bringing proceedings against a company being wound up by the court is not extra-territorial. The protection of the assets of a company in administration is not to be regarded by the Court as differing in substance from the protection of the assets of a company in compulsory liquidation. In both cases, the assets of the company are dealt with by an officer appointed by the Court in accordance with statutory duties.
The conduct of the Appellants and the circumstances of the attachments brought it into the exceptional category in which the grant of injunctive relief is justified, notwithstanding comity and notwithstanding the outstanding application of the Administrators in New York.
Statutes: Insolvency Act 1986
This case cites:
- Cited – In Re Oriental Inland Steam Company ex parte Scinde Railway Company CA ((1874) LR 9 Ch App 557)
The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . . - Cited – Mitchell -v- Carter ChD ([1997] 1 BCLC 673)
Section 183 of the 1986 Act, which precludes a creditor who levies execution or attaches a debt after commencement of a winding up, from retaining the benefit of his execution or attachment, does not apply to executions or attachments in foreign . . - Cited – Re Vocalion (Foreign) Ltd ([1932] 2 Ch 196)
The section only applies only to proceedings pending in the UK, and not to proceedings in a foreign Court. The Court has an equitable jurisdiction in personam to restrain a respondent properly served in this country from proceeding with an action . . - Cited – Societe Nationale Industrielle Aerospatiale v Lee Kui Jak and another PC ([1987] 1 AC 871)
The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a sufficient . . - Cited – Polly Peck International Plc -v- The Marangos Hotel Company Ltd & Others CA (Times 18-May-98, Bailii, [1998] EWCA Civ 789, [1998] 3 All ER 812, [1998] 2 BCLC 185)
Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . . - Cited – Barclays Bank -v- Homan CA ([1993] BCLC 680)
If the conduct of a creditor can be castigated as oppressive or vexatious the Court can and should grant relief in order to protect the performance by administrators of their functions and duties. . .