Strand, London, WC2A 2LL
B e f o r e :
| IN THE MATTER OF NEW CAP REINSURANCE CORPORATION LIMITED (IN LIQUIDATION) AND IN THE MATTER OF THE INSOLVENCY ACT 1986
(1) NEW CAP REINSURANCE CORPORATION LIMITED (IN LIQUIDATION)
(2) JOHN RAYMOND GIBBONS
|- and -
|(1) AE GRANT AND OTHERS (NAMED IN SCHEDULE 1) AS MEMBERS OF LLOYD'S SYNDICATE 991 FOR THE YEAR 1997 YEAR OF ACCOUNT
(2) AE GRANT AND OTHERS (NAMED IN SCHEDULE 2) AS MEMBERS OF LLOYD'S SYNDICATE 991 FOR THE 1998 YEAR OF ACCOUNT
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900
MR. ROBIN KNOWLES CBE, QC and MS. BLAIR LEAHY (instructed by Edwards, Angell, Palmer & Dodge LLP) for the Respondents.
Crown Copyright ©
Mr. Justice Lewison:
"(a) Ordering that AE Grant & Others, Lloyd's Syndicate Number 991 for the 1997 year of account (being the persons identified in Schedule 1 to the declarations, orders and directions a copy of which is annexed to this Letter of Request and marked 'A') pay to New Cap Reinsurance Corporation Limited (in liquidation) each of the sums of money ordered by Order 2 of those declarations, orders and directions, as well as the costs thereby ordered to be paid by the defendants."
"In the alternative: (i) Ordering that the Liquidator be at liberty to file and serve proceedings in the High Court of Justice of England and Wales in, or substantially to the effect of, the form annexed to this Letter of Request and marked 'B'; AND FURTHER (ii) Declaring that the proper law to be applied by the High Court of Justice of England and Wales for the determination of any such proceedings commenced pursuant to that liberty is the law of Australia."
It also contained ancillary requests.
"On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgement – (a) shall be set aside if the registering court is satisfied—(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or (ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or (iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or (iv) that the judgment was obtained by fraud; or (v) that the enforcement of the judgment would be contrary to public policy in the country of the registering court; or (vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;
"(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter."
Section 6 of the Act provides:
"No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this part of this Act applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in the United Kingdom."
MR. MOSS: I am much obliged, my Lord. The next matter is that of costs. I, respectfully ask for the costs of the proceedings to be assessed if not agreed. There is just one slight quirk that has been pointed out to me, and that is that some costs were reserved to your Lordship in a consent order of Floyd J., which your Lordship will find at tab 7 of volume 1.
MR. JUSTICE LEWISON: Was that the stay, which was part of your application? What was that?
MR. MOSS: This was, as your Lordship may recall, an application for a preliminary issue. We objected to that and the respondents agreed to have that dismissed. As I understand it – I think no one attended on that occasion – correspondence shows that the objections to the costs included the costs of the third witness statement of the liquidator. Your Lordship will see that point at paragraph 4 of the order. That, apparently, was based on the fact that some of the evidence in Mr. Gibbons' third witness statement would be relevant to the trial and therefore not entirely wasted. Since we have won the trial, it must follow that we should have these costs, too, in our respectful submission.
My learned friend will probably have some applications after the issue of costs. We would appreciate a period of ten minutes. We have thought about this quite carefully. We just want to finalise our position on this application.
MR. JUSTICE LEWISON: Costs, Mr. Knowles?
MR. KNOWLES: First of all, I am not going to seek to sub-divide costs in relation to a witness statement or not, and nor do I, in the light of your Lordship's decision, resist an order in the normal form on the standard basis. There is a link with the question of appeal, which I will ask your Lordship to entertain in ten minutes time if that is sensible. I will be suggesting that there is an arrangement pending any appeal which can keep the financial sums in a suitable shared location; for example, a joint account. I just signal that as well. So far as the costs in a self-contained way are concerned, there is nothing I can add.
MR. JUSTICE LEWISON: In that case, I will rise for ten minutes or so. I will not take a great deal of persuading that it is an appropriate case for permission to appeal. Whether I go further and say it is a suitable case for a leapfrog, which is one of the things that Mr. Knowles canvassed, is a different question.