Henderson v Foxworth Investments Limited and Another: SC 2 Jul 2014

It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for adequate consideration’. One element was that the same debt said to have been taken on by the purchaser, was in fact proved against the company on its subsequent insolvency. The criticisms levelled at the Lord Ordinary in relation to this matter missed their target: ‘His treatment of this chapter of evidence was not unbalanced, and did not indicate any failure to understand it or to take it into account. More generally, he gave careful consideration to the arguments and evidence adduced on behalf of the liquidator, and explained why he nevertheless concluded that the liquidator’s case should be rejected.’
Lord Reed summarised the approach to a judgment of the Court of Session: ‘It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.’
and ‘It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.’

Lord Kerr, Lord Sumption, Lord Reed, Lord Carnwath, Lord Toulson
[2014] 1 WLR 2600, [2014] UKSC 41, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, UKSC 2013/0083
Bailii Summary, Bailii, WLRD, SC, SC Summary, SC, SC Summary
Insolvency Act 1986 242
Outer House OpinionHenderson v Foxworth Investments Ltd SCS 12-Apr-2011
Outer House – The pursuer was liquidator of a Company, suing for declarator that ‘the pretended standard security’ granted by the second defenders in favour of the first defenders in respect of subjects was void and unenforceable; and for production . .
Costs at Outer HouseHenderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
CitedHenderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
CitedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
CitedMcGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
CitedJohn Stewart Hamilton and others v Allied Domecq Plc OHCS 1-Aug-2003
. .
CitedThomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
CitedHousen v Nikolaisen 28-Mar-2002
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge . .
CitedRe B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .

Cited by:
CitedCarlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
CitedPaymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
CitedPerry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
CitedWalsh v The Council of The Borough of Kirklees QBD 5-Mar-2019
No demonstrable error of assessment – no appeal
The claimant cyclist appealed from refusal of damages after being thrown from her bike on hitting a pothole in the road. The court had found it unproven that the pothole was dangerous.
Held: The evidence had been difficult. The court noted . .

Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Leading Case

Updated: 12 November 2021; Ref: scu.533880