England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 97/0463/E

(His Honour Judge Anthony Thompson QC)

Royal Courts of Justice

Thursday, 8th May 1997

Before:

LORD JUSTICE HIRST

LORD JUSTICE SWINTON THOMAS

LORD JUSTICE PHILLIPS

- - - - - - - -

ALLIED IRISH BANK

Plaintiff

-v-

ASHFORD HOTELS LIMITED

Defendants

and

ASHFORD HOTELS LIMITED

Plaintiff/Respondent

-v-

(1) JAY FRANCIS HIGGINS

(2) CHARLES DANIEL TYREE

(3) EMBLEM BV

Defendants/Appellants

- - - - - - - -

(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street, London, EC4A 2HD. Telephone No:

0171-831 3183. Shorthand Writers to the Court.)

- - - - - - -

MR. S. GEE Q.C. and MR. M. ROLLASON (instructed by Messrs Lee &

Priestly, Leeds) appeared on behalf of the Appellants/First and Second Defendants.

MR. C. FALCONER Q.C. and MR. M. SMITH (instructed by Messrs Wilde Sapte) appeared on behalf of the Respondents.

- - - - - - -

J U D G M E N T

(As approved by the Court )

Crown Copyright

This interlocutory appeal is brought with leave of this Court given on the 27th March of this year. The Appellants are Defendants to an Action commenced by Ashford Hotels Ltd ("Ashford") in 1993 ("the 1993 Action"). Part of the relief that they seek relates, however, to an Action commenced a year earlier between Allied Irish Bank ("the Bank") and Ashford ("the 1992 Action"). A question has been raised as to their locus standi to seek relief in respect of that Action and, should it be procedurally necessary they seek leave to be joined in that Action in order to acquire locus standi. I propose to consider the merits of their appeal before turning, should it be necessary, to procedural questions.

Ashford is a Delaware Company, with its principal office in New York. In 1989 Ashford embarked on a venture to convert an English stately home called Nuneham Park into a luxury hotel. The Bank financed this venture with a loan of £3 million. Ashford guaranteed repayment of that loan. Under a restructuring agreement the Appellants, Mr Higgins and Mr Tyree, who are New York businessmen, agreed with Ashford to indemnify it against its liabilities to the Bank under the guarantee. The project did not prosper and, in the 1992 Action, the Bank sued Ashford on its guarantee and entered a default judgment for £3,607,520.

By way of what is described as "equitable execution" the Bank obtained an Order appointing Mr Gill, a partner in Wilde Sapte -the Bank's London Solicitors - as a Receiver in respect of Ashford's right to an indemnity from Mr Higgins and Mr Tyree.

On the 8th January 1993 the Receiver, in the name of Ashford, commenced the 1993 Action against Mr Higgins and Mr Tyree, claiming under the indemnity. By this time, however, Mr Higgins and Mr Tyree had commenced an Action in the State Court of New York ("the New York Action") against, among others, Ashford. In this Action they sought, amongst other relief, rescission of, or more accurately, a declaration that they had validly rescinded, the restructuring agreement that contained the indemnity, on the ground that it had been procured by misrepresentation. The nature of this misrepresentation, very shortly summarised, was that investor support for earlier similar development projects had been deliberately exaggerated by the use of what are referred to as 'stand-by' investors. Much of the evidence in relation to this matter was located in New York. Ashford, which had an active Board of Directors in New York and, it would seem, at least some available funds, was actively defending this Action.

On the 18th April 1994 Mr Higgins and Mr Tyree obtained from His Honour Judge Rich, Q.C., an Order staying the 1993 Action to await the result of the New York Action. In these circumstances, the Receiver decided not to seek to take any part in the New York Action, but to leave Ashford to fight his battle for him. If the New York Court held that Mr Higgins and Mr Tyree were entitled to rescind the restructuring agreement then the Receiver accepted that the principle of 'res judicata' would defeat his claim in the 1993 Action. If, however, Mr Higgins and Mr Tyree lost the New York Action, they would then, by virtue of the same principle, have no defence to the 1993 Action.

Five years have elapsed since the New York Action was commenced and it has not yet reached trial. At the end of 1996 Mr Higgins and Mr Tyree proposed a settlement to Ashford on the basis that they would each drop all outstanding claims against the other.

This was an attractive proposition so far as Ashford were concerned, for they had exhausted their available funds in the litigation and had little to gain from it. They, and their lawyers, took the view, however, that they had no right to agree to release Ashford's claim to an indemnity unless the Receiver concurred in this. As their lawyers put it in a letter to the Receiver:

"under New York law once a receiver has been appointed to control an asset the party holding that asset loses all control to alienate the subject property, including causes of action and contract rights."

It is common ground that this is also the position at English law and that the appointment of Mr Gill as Receiver in respect of the claim to an indemnity from Mr Higgins and Mr Tyree had the effect of the grant of an injunction restraining Ashford from disposing of that chose in action.

Mr Higgins and Mr Tyree have called on the Receiver to agree to the proposed settlement. The Receiver is not prepared to do so.

He takes the view that the proposed settlement is not one that has been negotiated on the basis of an appraisal of the merits of the litigation. While Ashford has nothing to lose from the settlement, the Bank would lose the value of the indemnity and he can see no justification for agreeing to this.

Mr Higgins and Mr Tyree contend that it is unjust that the Receiver should be able to prevent a settlement that both they and Ashford are anxious to conclude, particularly if he is able to do so without shouldering any liability for the loss that his refusal may cause. If the New York Action has to go to trial, this is likely to cause them to incur legal costs in the region of $1 million. If they win the action, this expenditure will be attributable, so they contend, to the Receiver's unreasonable refusal to agree to the proposed settlement.

In these circumstances, in summonses brought in both the 1992 and the 1993 Actions, Mr Higgins and Mr Tyree sought:

(i) an order that the Receiver be directed to approve the proposed settlement; or

(ii) an order that the appointment of the Receiver be discharged.

In the alternative, they contended that the Bank should be required to give what they have described as a cross-undertaking in damages, that is to say an undertaking to bear any losses caused to them by the appointment of the Receiver that the Court considers that the Bank ought to bear.

The Bank countered by applying for the stay of the 1993 Action to be lifted on the ground that Mr Higgins and Mr Tyree had so procrastinated in their conduct of the New York action that the issue of their liability under the indemnity should now be resolved by the English Court instead.

These cross-applications were made to H.H. Judge Thompson, Q.C., sitting as a deputy High Court Judge. On the 27th February 1997 he dismissed the applications of Mr Higgins and Mr Tyree and allowed the Bank's application for the stay on the 1993 Action to be lifted.

Mr Higgins and Mr Tyree now appeal against all parts of H.H. Judge Thompson's Order.

The relief that the Appellants contend should be granted by this Court in place of H.H. Judge Thompson's Order consists of a number of Orders which are to a degree alternative. They are as follows:

(1) The Receiver be discharged unconditionally.

(2) The Receiver be directed to approve the proposed settlement.

(3) The Receiver be directed to pursue the claim on the indemnity in New York.

(4) The Bank be required to give a cross-undertaking in damages.

(5) The stay on the 1993 Action be re-imposed.

It is helpful at the outset to summarise the effect of the Order appointing Mr Gill as Receiver, as to which there is no dispute.

The Order was made by way of execution in the 1992 Action. It appointed Mr Gill, as an officer of the Court and not as agent or trustee for the Bank. It appointed him to receive the fruits of a chose in action alleged to be owned by the judgment debtor, Ashford, namely the right to an indemnity from Mr Higgins and Mr Tyree. It specifically authorised the Receiver to take all steps necessary to enforce payment of the indemnity. The Order did not vest in the Receiver any right to the indemnity, nor did it effect a charge on the indemnity by way of security in favour of the Bank. But it entitled the Receiver to bring proceedings to enforce the indemnity in the name of Ashford which, if successful, would result in the proceeds of the action being available to discharge Ashford's liability to the Bank.

So far as Ashford were concerned, the Order operated as an injunction restraining them from disposing of the chose in action, or the proceeds of it. So far as Mr Higgins and Mr Tyree were concerned, the effect of the Order, once they had notice of it, was to prevent them from discharging any liability that they had under the indemnity by payment to Ashford, rather than to the Receiver. It is, however, their case that their obligations under the indemnity had been rescinded before the Receiver was appointed. If that be correct, the appointment of the Receiver had no effect on their legal rights. Its practical effect was that any (ex hypothesi) invalid claim in respect of the indemnity would be brought against them in the name of Ashford, not at the instigation of the directors of that Company, but at the instigation of the Receiver. Its further practical effect was and is that Ashford are not prepared, without the consent of the Receiver, to agree to abandon any claim under the indemnity.

The Court has, of course, jurisdiction to discharge the Receiver, who is the Court's own officer. The circumstances in which it is appropriate to exercise this jurisdiction are set out in Chapter 12 of Kerr on Receivers, 17th edition. In the context of the present case it seems to me that the only grounds upon which the Appellants can argue that the Receiver should be discharged are:

(1) That his appointment has been demonstrated to have been inappropriate and unnecessary because the chose in action that he was appointed to receive does not exist.

(2) That he has acted with impropriety in failing to approve the settlement.

(3) That he has failed to perform the function that he was appointed to perform in that he has failed to pursue a claim in respect of the indemnity in New York.

(4) That the Bank have refused to provide a cross-undertaking in damages in circumstances where justice demands that this should be a condition of the continuation of the receivership.

The Appellants accept that they are not presently in a position to demonstrate that the Receiver should be discharged on the first ground. It is common ground that whether or not the indemnity has been discharged by agreement is a triable issue.

The other grounds reflect the alternative mandatory orders which the Appellants seek, and I think it convenient to turn straight to those orders.

As I understand it, the basis upon which the Appellants contend that the proposed settlement of the New York action should be agreed by the Receiver is as follows: The Receiver left the conduct of the New York proceedings to Ashford. The trial process in New York, and in particular discovery that has been given in other actions in New York, has now satisfied Ashford of the validity of the Appellants' claim that they have rescinded the restructuring agreement for misrepresentation. In these circumstances it is improper for the Receiver to refuse to approve the settlement.

If this were the true scenario, I would have some sympathy with the Appellants' criticism of the Receiver's conduct. I am, however, satisfied that it is not the true scenario. Rogers & Wells, the New York lawyers acting for Ashford, have made clear in correspondence the basis upon which their clients are prepared to agree to the proposed settlement. Thus in their letter of January 17th 1977 they wrote:

With regard to the settlement let me emphasize that all defendants, including AHL, continue to vigorously deny all material allegations of the complaint but are willing to settle the matter on the basis that Higgins and Tyree agree to dismiss all claims against AHL and the AHL will release all claims it currently possesses against plaintiffs at the time of the release. AHL can only release claims it currently holds and not any claims controlled by any other person such as the duly appointed English Receiver.

and in a letter of February 7th they added:

In November 1996, I received a proposed settlement agreement from plaintiffs' attorney, Mr. Andrew Schlafly. In this document, Mr. Schlafly proposed that Tyree and Higgins and Ashford mutually release each other from all claims with no cash payment to be made by either side. The proposed settlement document by way of explanatory introductory statements contained an acknowledgement that Ashford, for the purpose of the settlement, would no contest that the 1990 Restructuring Agreement could be considered unenforceable. This was done for the reason that Ashford has no ongoing business in the United States and, for the purpose of facilitating an end to the U.S. action at no cost, saw little need to extend the debate as to the enforceability of the 1990 Restructuring Agreement. However I should note that for five years, Ashford has vigorously defended against the claim that the 1990 Restructuring Agreement is invalid or unenforceable. Unfortunately, Ashford at this time has insufficient financial resources or incentive to continue to defend against that claim.

Ashford have not recognised the validity of the Appellants rescission claim. Their attitude to the settlement simply reflects the fact that it is the Bank, not Ashford, that stands to gain from the claim on the indemnity. I have already observed that the Appellants are not currently in a position to demonstrate that the chose in action in respect of which the Receiver was appointed does not exist.

In these circumstances I consider that the Receiver is acting with perfect propriety in refusing to approve of the settlement. There is no justification for ordering him to approve it, and his attitude does not constitute grounds for his removal.

It is the Appellants' case that New York was the appropriate forum in which to pursue the claim under the indemnity and that, having particular regard to the fact that the English proceedings were stayed, it was the duty of the Receiver to pursue the claim with diligence in New York. This appears to be a novel submission. The Receiver has exhibited to an Affidavit sworn on the 10th February 1997 extracts from the Affidavits and skeleton argument advanced on behalf of the Appellants when they applied for a stay of the English proceedings in 1994. These contain no hint of the possibility that the Receiver would intervene in the New York proceedings. The Appellants advanced the argument that the New York proceedings were well under way, would be prosecuted briskly, would be likely to be concluded before the English proceedings could be brought to trial and would be determinative of the English proceedings. In his Judgment granting a stay, H.H. Judge Rich expressed his understanding of the position as follows:

If the stay is granted, AIB could seek to be joined in the New York proceedings, in a way which Mr. Robinson explained to me this morning, and they could then enforce their English judgment against AHL by seeking a lien on AHL's indemnity against the Defendants. That would clearly involve AIB in additional expense, and would effectively deprive them of the benefit of the advantage from a point of view of enforcement that they obtained when they obtained their order of receivership. Since AHL are continuing operation in New York under the direction of the United State's board of that company and are apparently defending the New York proceedings in any case, AIB are at any rate probably unlikely to intervene in those proceedings, even if this action here is now stayed.

In my judgment the Receiver acted properly and sensibly, on the understanding that the Appellants would pursue their claim in New York with due despatch, in standing on the sidelines to await the result of the New York Action. There is no basis for an Order that he should involve himself in the New York proceedings, nor for discharging him on the ground that he has not so involved himself.

Thus far, my conclusions have been the same as those of H.H. Judge Thompson.

For the Appellants Mr Gee, Q.C., submits that the Court has jurisdiction to make it a condition of the continuation of the Receivership that the Bank gives a cross-undertaking in damages.

He further submits that, as a result of a change of circumstances since the Receiver was appointed, justice requires that such a condition should be imposed. The willingness of Ashford to settle the New York proceedings, subject to the approval of the Receiver, means that it is now the attitude of the Receiver which is exposing the Appellants to ongoing costs in New York. Should they succeed in New York, the Bank ought to bear those costs.

For the Bank, Mr Falconer, Q.C., submits that the Court has no jurisdiction to give the relief sought, or alternatively should not exercise such jurisdiction on the facts of this case.

In urging that the Court had jurisdiction to grant the relief sought, Mr Gee relied upon the following provisions of the Supreme Court Act 1981:

37 (1) The High Court may by order (whether interlocutory or final) grant an injunction of appoint a receiver in all cases in which it appears to the Court to be just and convenient to do so.

(2) Any such order may be made either unconditionally or on such terms and conditions as the Court thinks just.

Mr Gee submitted that the form of cross-undertaking in damages which he seeks is one that the Court is accustomed to give as a

matter of course when granting a Mareva injunction under the same statutory jurisdiction. He further argued that there are close analogies between the grant of a Mareva injunction and the appointment of a Receiver by way of equitable execution.

The form of undertaking to be given by a Plaintiff seeking a Mareva injunction, as set out in a 1994 Practice Direction, [1994] 1 W.L.R.1233, included the following:

6) The plaintiff will pay the reasonable costs of anyone other than the defendant which have been incurred as a result of this order including the costs of ascertaining whether that person holds any of the defendant's assets and that if the Court finds that this order has caused such person loss, and decides that the person should be compensated for that loss, the plaintiff will comply with any order the court may make.

This remains part of the current undertaking.

Mr Falconer argued that the appointment of a Receiver by way of equitable execution was not properly to be compared with a Mareva injunction. No precedent existed for exacting the giving of such an undertaking as a condition of the appointment of a Receiver.

It does not seem to me that this argument bears on the jurisdiction of the Court to require such an undertaking in such circumstances. The Mareva injunction is a comparatively recent addition to the armoury of the Court. Having discovered the existence of, or some would say invented, this weapon, the Court went on to invent the ancillary weapon of the cross-undertaking in damages for the benefit of third parties - see Z Ltd. v A-Z and AA-LL [1982] 1 Q.B. 558. In that case the cross-undertaking approved by the Court was one designed to protect third parties from the consequences of compliance with the injunction but the scope of the protection of the undertaking has since been expanded to embrace third parties adversely affected by the injunction.

For myself I cannot accept that the jurisdiction of the Court to require such an undertaking only exists where a Mareva injunction is ordered. Once the cross-undertaking for the benefit of third parties became a recognised feature of the Court's jurisdiction in that context, it necessarily followed that the Court could make use of it when granting other discretionary relief, at least where that relief was empowered under the same statutory provision.

For these reasons I have concluded that the relief that Mr Gee seeks is relief which the Court has jurisdiction to grant.

The Judge refused to require the Bank to give a cross-undertaking in damages as a condition of allowing the Receivership to continue. In so doing :

(1) He appears to have assumed that Mr Gee's application was founded on Order 30, Rule 2 of the Rules of the Supreme Court and held that the Rule did not entitle the Appellants to the relief sought;

(2) He held that the analogy that Mr Gee had drawn between a Mareva injunction and the appointment of a Receiver by way of equitable execution was not apt. The latter had more in common with a garnishee order, which was never subject to a cross-undertaking in damages.

(3) He held that there was no precedent for ordering a cross-undertaking in damages where a Receiver was appointed by way of equitable execution.

It is not clear whether the Judge considered that these points were relevant to jurisdiction or discretion. The first point was misconceived, and Mr Falconer has not sought to rely on it. Mr Gee had not invoked Order 30, Rule 2 and the relief which he was seeking had nothing in common with the security which the Court could order under that Rule. Mr Falconer has, however, relied before us on the other two points. While I do not consider that they bear on the question of jurisdiction, they are plainly relevant in the context of discretion.

A Mareva injunction has this in common with the appointment of a Receiver by way of equitable execution. It restrains the owner of property from dealing with that property, but there it seems to me that the similarity ends. The relevant peculiarity of the Mareva injunction is that the property in question is likely to represent credit balances at third party banks and that notice of the injunction will immediately be given to those banks, requiring action and possible expenditure on their part in order

to comply with the injunction. It is this feature which led the Court to impose cross-undertakings in favour of third parties.

The appointment of a Receiver by way of equitable execution will not normally have this feature, nor does the present case. For these reasons I do not find the analogy urged by Mr Gee to be compelling.

So far as the analogy with garnishee orders is concerned, they do have similarities with the form of equitable execution with which this case is concerned and cross-undertakings in damages form no part of such orders, but I do not find that fact provides assistance in determining the application which is founded on the peculiar facts of this case.

There was a lively debate before the Judge, and before us, as to the extent to which the relief sought by the Appellants was unprecedented in the context of the appointment of a Receiver.

The Second Edition of Lightman and Moss on the Law of Receivers of Companies advances the following proposition in relation to the appointment of a Receiver at p.338:

A cross-undertaking in damages will ordinarily be required of the application, whether the order is made ex parte or inter partes.

H.H. Judge Thompson held that this did not accurately state the law and Mr Falconer contended that this was correct. He argued that it was only appropriate to order a cross-undertaking in damages were a Receiver was appointed ex parte, for in such circumstances it might subsequently prove that the appointment had been wrongfully made, and the applicant ought to be liable in damages in such circumstances. Where a Receiver was appointed on an inter partes hearing there was no such justification for a cross-undertaking.

Mr Gee urged that Lightman and Moss correctly stated the position, and relied on the authority cited by the authors in support of the proposition, National Australia Bank Ltd v. Bond Brewing Holdings Ltd [1990] C.L.R. 271, a decision of the High Court of Australia.

I found this a barren debate for the following reasons.

In the first place, the cross-undertaking referred to by Lightman and Moss is the conventional undertaking in favour of the other party to the litigation, not an undertaking extending to third parties. In the second place the National Australia Bank case concerned the appointment of a Receiver over companies, which is also the subject matter of Lightman and Moss' work, and can have little bearing on the appointment of a receiver by way of equitable execution. In the third place, when one is considering a cross-undertaking to protect third parties, I cannot see that the question of whether it is given ex parte or inter partes has any relevance. Whether the proposition in Lightman and Moss is correct or not, the reality in this case is plain. Mr Gee is seeking to persuade the Court to require, in a very different context, an undertaking of a type that has hitherto only been required as a condition of the grant of a Mareva injunction.

Mr Gee was asked by the Court whether it was his case that the cross-undertaking in damages which he seeks should always be required as a condition of appointing a Receiver by way of equitable execution. His answer was that he did not so submit, but that the special circumstances of this case made it just to impose such a requirement. He identified those special circumstances as follows:

1) The existence of the cause of action in respect of which the Receiver has been appointed is disputed. If the Appellants are right, no cause of action exists so that there was no property over which the Receiver could properly have been appointed. They should be protected by an undertaking in respect of loss suffered in that eventuality.

2) The issue of whether the cause of action exists is being litigated in New York, the natural forum, where the Appellants will not recover costs if they are successful.

3) The reason why the Appellants are being compelled to incur ongoing costs in New York is the refusal of the Receiver to give his consent to the settlement which is on offer.

I consider that the critical issue on this aspect of the appeal is whether these circumstances do render it just to make the Order sought. What Mr Gee is, in effect, contending is that in the circumstances of this case it should be open to the Appellants, should they succeed in the litigation, to recover an indemnity in respect of the ongoing New York costs incurred in order to make good their case.

In my judgment the fact that Ashford are now ready to agree a settlement of the New York proceedings, which Mr Gee has placed at the heart of his submissions, is a red herring. From the moment that the Receiver was appointed, settlement was no longer in Ashford's gift. At that point the Appellants successfully applied for a stay of the English proceedings in order to litigate in New York the issue of their liability under the indemnity. They did so in the knowledge that, if successful, they would not be entitled to recover their costs. Had they, at that stage, sought the order that they now seek, I think that the short answer should and would have been that it was their choice to sue in New York and that they had to bear the consequences of that choice. It now seems that Ashford have no longer got the funds to continue to fight the New York proceedings and would like to settle. In these circumstances, as Mr Falconer pointed out, the Receiver may have to fund those proceedings to prevent the Appellants proceeding to an unopposed hearing. The order that Mr Gee seeks would unbalance the New York proceedings, leaving the Appellants with the possibility of recovering their costs if they win, but being under no liability for Ashford's costs should they lose. I do not consider that the interests of justice require the Appellants to be placed in that position.

The Appellants contend that, if they are to pursue the New York action to its conclusion, this will involve costs in the region of $1,000,000. If this be the case, it is not clear to me that the convenient course is for them to continue to fight those proceedings, rather than discontinue them and use the material that they have obtained in them in defence of the English proceedings. The choice which course to take is theirs.

For all these reasons Mr Gee has failed to persuade me that justice requires this Court to require the Bank to give a cross-undertaking in damages as a condition of the continuance of the Receiver's appointment.

I now turn to the question of whether the Judge was right to lift the stay of the 1993 Action. This was a discretionary matter, but Mr Gee urges that the Judge was wrong in principle and that, in any event, there has been a very material change of circumstances since he made his Order.

The Judge was faced with a conflict of Affidavit evidence as to the enthusiasm with which the Appellants have pursued the New York proceedings and the likely trial date in New York.

In their letter to the Receiver dated the 17th January, Rogers & Wells wrote:

Since the filing of the action almost five (5) years ago there has been only limited discovery consisting of an exchange of relevant documents among the parties and the deposition of Mr. Higgins. The last deposition was taken at least two and one-half (2½) years ago. Since Mr. Schlafly became counsel to plaintiffs I am unaware of any depositions taken on behalf of Messrs. Higgins and Tyree. Based upon the lack of activity, on a substantive level, in this case it is my belief that it is at least two or three years away from trial.

In contrast Mr Schlafly, the Appellants' New York lawyer, deposed on the 18th February 1997, stating that the Appellants had been taking vigorous steps in furtherance of the New York proceedings, although many of these had been in the form of obtaining evidence in related actions in New York, that evidence under New York rules of procedure being available for use in the New York action. As to the trial date, Mr Schlafly stated:

The current position is that pre-trial procedures in Index No. 19592/92 are nearing completion and that the assigned trial judge, Justice Friedman, stated at the pre-trial conference held on 30th January 1997 that if the proposed settlement were not concluded, then trial would be scheduled "promptly".....

I believe that the trial could commence within a few months of the proposed settlement not proceeding. I would add that the court of Justice Friedman is considered to be one of the fastest courts in New York for determining disputes.

H.H. Judge Thompson observed that he was unable to determine which of the rival pictures was correct. He expressed scepticism as to whether the New York proceedings would progress further, having regard to Ashford's attitude and to the fact that the Appellants said that they would have to spend a further $1,000,000 of costs. He concluded:

The issue is very finely balanced. I have to make a decision. I think the stay should be lifted. If it remains nothing will happen in New York. Here the one party who h as an interest in concluding the proceedings and can prosecute them to a conclusion is AIB. The successful party here will recover costs. This is a case where the issues are finely balanced whether it is here or in New York. The contract which is sued upon is an English contract. There is a non-exclusive jurisdiction clause. These militate in favour of England. It was sensible to proceed first in New York. Mr. Higgins and Mr. Tyree are U.S. citizens and Ashford is a Delaware corporation. However the subject matter is undoubtedly in England.....

The case could be litigated in either jurisdiction and from time to time the convenient forum may vary. The balance has now shifted. The case may not be litigated in New York. The balance has swung this way. The stay should be lifted so the action can be brought on. Both sides have done a fair measure of preparation. In the interests of discretion the stay should be lifted.

Since the Judgment, the Appellants have served an Affidavit giving the following information:

The assigned trial Judge in New York (Justice Friedman of the Commercial part of the New York Supreme Court) after being informed of the orders made by Judge Thompson, Q.C., has directed the trial to start in New York on 30th June 1997. I have been informed of this by Mr. Andrew Schlafly who is the New York Counsel acting for my clients.

Mr Gee submits that this resolves in the Appellants' favour the doubts expressed by H.H. Judge Thompson and tilts the scales decisively against lifting the stay. If I were confident that the trial in New York would indeed proceed on the 30th June I would agree, but I do not have that confidence. The Appellants are attempting to obtain evidence from the Bank for the purpose of the New York proceedings and it is apparent that they consider this evidence important. I think it at least possible that they will seek an adjournment of the New York proceedings in order to enable them to obtain this evidence. When asked by the Court whether his clients would be prepared to give an undertaking that would allay this apprehension, Mr. Gee proffered one that included the following:

"Mr Higgins and Mr Tyree will do their best not to apply for an adjournment of the trial date fixed for 30th June 1997"

This has merely confirmed my conclusion that an adjournment of the New York proceedings will be a possibility if the stay of the English action is re-imposed.

I see the position as follows. If the New York trial date of 30th June is held, the New York action will proceed to a conclusion before any significant further steps are likely to be taken or significant expense incurred in the English action. The lifting of the stay provides a powerful incentive to hold the New York trial date, which I would be loath to remove. If, on the other hand, the New York trial date proves to be one that cannot be held, then this will tend to vindicate the view formed by H.H. Judge Thompson. For these reasons I do not consider that the fresh evidence about the New York trial date constitutes a reason for reversing the Judge's decision on this point, which fell within the proper exercise of his discretion on the material before him.

For these reasons I would dismiss this appeal.

I agree.

I also agree.