Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 141

 

CA51/15, CA52/15 & CA53/15

OPINION OF LORD TYRE

In the Petitions of

HOOLEY LIMITED

Petitioner

for declarator re the validity of actions of the Administrator of

THE VICTORIA JUTE COMPANY LIMITED

THE SAMNUGGUR JUTE FACTORY LIMITED

and

TITAGHUR PLC

and in the causes

HOOLEY LIMITED

Pursuer

against

THE VICTORIA JUTE COMPANY LIMITED and others

Defenders

HOOLEY LIMITED

Pursuer

against

THE SAMNUGGUR JUTE FACTORY LIMITED and others

Defenders

and

HOOLEY LIMITED

Pursuer

against

TITAGHUR PLC and others

Defenders

Petitioner and Pursuer: Sandison QC, O’Brien;  Maclay Murray & Spens LLP

Respondent and Defender (Ganges Jute Private Limited):  Sellar QC, Roxburgh; HBJ Gateley

11 October 2016

Introduction
[1]        In these three petitions, the petitioner (“Hooley”) seeks declarators concerning its rights under Scots law arising out of contracts entered into with an individual (“the Administrator”) acting as administrator of three companies incorporated in Scotland but carrying on business in India, namely The Victoria Jute Company Limited (“Victoria”), The Samnuggur Jute Factory Limited (“Samnuggur”), and Titaghur plc (“Titaghur”).  Until August 2001, Victoria and Samnuggur were subsidiaries of Titaghur.  The three actions at the instance of Hooley respectively concern the same substantive issues as the three petitions, and were raised in response to a challenge to the competency of seeking declarator in a petition.  Ganges Jute Private Limited (“Ganges”), who entered the petition processes as respondent and lodged defences to the actions, is a creditor of Victoria, Samnuggur and Titaghur.

[2]        The background to these proceedings is complex.  Each of the three companies is subject to an order of the (Indian) Employees’ Provident Fund (“the Indian authority”) seizing its entire assets in connection with an alleged failure to meet its obligations to pay contributions to employers’ pension funds.  Various orders have been made by the High Court of Kolkata (“the Indian court”) in respect of Victoria and Samnuggur, including orders made in 1990 prohibiting them from dealing with or granting charges over their assets.  Since about 1998, the business of Victoria and Samnuggur has been carried on by a licensee of special managers appointed by the Indian authority;  the purpose of that arrangement, as I understand it, is to generate business profits to apply in payment of the debts due to the employers’ pension funds.  Titaghur’s shares in Victoria and Samnuggur were sold by the Indian authority in 2001.  Titaghur is subject to liquidation proceedings in India.  It was ordered to be wound up by an order of the Indian court dated 12 December 2006.  A petition to wind up Samnuggur is also pending before the Indian court.  Hooley challenges the validity of various orders pronounced by the Indian court in relation to Titaghur, Victoria and Samnuggur, including the winding‑up order in respect of Titaghur.  Litigation in India is continuing. 

[3]        The Administrator was appointed, so far as Victoria and Samnuggur are concerned, on 24 October 2011 by Hooley as the holder of floating charges granted by these companies in favour of a company called Aurburn Properties Limited on 11 July 2001 and registered in the (UK) Register of Charges on 27 July 2001.  The benefit of those charges was assigned to Hooley on 25 May 2005.  As regards Titaghur, the Administrator was appointed by an order of this court (Lord Hodge) dated 16 March 2012 on Hooley’s application.  Ganges avers ‑ and for present purposes I proceed on the basis ‑ that when Lord Hodge was asked to pronounce this order he was not informed of the winding-up order by the Indian court.  The validity of all of the floating charges is disputed by Ganges.

[4]        On 7 November 2011, the Administrator offered to sell, and Hooley agreed to purchase, the whole business and assets of Victoria and of Samnuggur.  Supplemental agreements were entered into on the same day.  On 11 April 2012, the Administrator offered to sell, and Hooley agreed to purchase, the whole business and assets of Titaghur.  A supplemental agreement was entered into on 11 and 13 April.

[5]        In each of the present proceedings, Hooley seeks declarator:

• that it contracted by missives of sale to purchase such right, title and interest as the company in question had and could transfer in and to its business, together with a list of assets;
• that, having paid the consideration provided for in terms of the missives of sale, it has acquired such right, title and interest in those assets as is transferred by operation of the contract constituted by the missives in terms of the law of Scotland;  and
• that the Administrator was, as a matter of the law of Scotland, entitled to enter into the missives of sale in terms of paragraph 60 of Schedule B1 and paragraph 2 of Schedule 1 to the Insolvency Act 1986, and that, in terms of the law of Scotland, any such sale does not require the subsequent approval of the Scottish courts.

Ganges challenges the competency of the granting of declaratory orders in Court of Session petition procedure.  It further contends that, in any event, this court ought not to grant any of the declarators sought.  In its defences to the three summonses, Ganges has stated a plea of lis pendens.

[6]        Lord Jones heard a debate of the competency, lis pendens and certain substantive issues on 2 and 3 July and 12 October 2015 and made avizandum.  His Lordship unfortunately died before issuing his opinion.  By interlocutors dated 1 July 2016, the Inner House remitted all six processes to a judge of the Commercial Court to listen to the digital recording of the diet of debate, to consider the notes of argument of the parties, and to otherwise proceed as he or she thought fit.  Having listened to the recording and considered parties’ notes of argument, I intimated to parties certain matters upon which I invited supplementary submissions.  Both provided written responses for which I am grateful; these were amplified at a by order hearing on 21 September 2016. 

 

Competency of declaratory orders
Argument for Ganges
[7]        On behalf of Ganges it was submitted that, subject to certain limited (and inapplicable) exceptions in the Rules of Court, it was incompetent to seek a declaratory order in a petition process.  Reference was made to the opinion of Lord MacFadyen in Renyana-Stahl Anstalt v MacGregor 2001 SLT 1247 at paragraph 52, approving the statement in Maxwell, The Practice of the Court of Session at page 433 that “it is incompetent to raise by way of petition legal questions for which there are other and more appropriate processes, such as reduction or declarator”.  McLaren, Court of Session Practice at page 832 was to the same effect.  That remained the position.  The authorities relied upon by Hooley explaining the reasons for the differences between ordinary action and petition procedures served only to bolster Ganges’ case.  The point might seem to be an arid one but it was nonetheless sound.

 

Argument for Hooley
[8]        On behalf of Hooley it was submitted that the petitions were competent.  The distinction between ordinary action and petition procedures was explained in Scottish Lion Insurance Co Ltd v Goodrich Corporation 2011 SC 534, under reference to the Report of the Royal Commission on the Court of Session (1927 Cmnd 2801) at 49-50:

“The object of the summons is to enforce a pursuer’s legal right against a defender who resists it, or to protect the legal right which the defender is infringing;  the object of a petition, on the other hand, is to obtain from the administrative jurisdiction of the court power to do something or to require something to be done, which it is just and proper should be done, but which the petitioner has no legal right to do or require, apart from judicial authority”. 

 

Reference was made to remarks to similar effect by Lord Keith in Tomkins v Cohen 1951 SC 22 at 23 and by Lord President Rodger in Bank of Scotland v Brunswick Developments (1987) Ltd 1997 SC 226 at 231.  In the present case the petitioner was not seeking to enforce any legal right against anyone or seeking relief from infringement of its own legal rights: rather, it was applying to obtain from the administrative jurisdiction of the court a formal declaration that a certain state of affairs existed, which it would then present to the Indian court.  The substantive rights of Ganges were in no way affected by the decision of the court.  In these circumstances, petition procedure was appropriate.  If Lord MacFadyen had intended in Renyana-Stahl to affirm that the appropriate form of process was determined by the form of relief sought, that would be incorrect.  Taken out of context, the observation relied upon by Ganges was too broadly stated.  Similarly, if Chaudhry v Advocate General 2013 SLT 548 (a decision of mine) proceeded on the view that there existed a rule of law that certain forms of remedy were not available in petition procedure, that reasoning was erroneous.  The ground of division into appropriate forms of procedure was one of substance, not form of remedy sought.

 

Decision
[9]        The statement in Maxwell approved by Lord MacFadyen in Renyana-Stahl (above) might at first sight appear to treat the form of remedy sought (such as declarator) as the basis for determining the competency of proceeding by way of a petition rather than a summons.  In my opinion, however, it has a broader base.  It follows upon an explanation by the author of the different purposes of ordinary procedure and petition procedure which is similar to that quoted above from the 1927 Royal Commission Report, under reference to authorities including Tomkins v Cohen.  The reason why the remedy of declarator has been held to be incompetent in petition procedure is that, by its nature, it consists of enforcing or protecting a right asserted by the applicant to exist, rather than seeking from the court a power to do something that could not otherwise be done.  In the loose-leaf work Court of Session Practice, the matter is put thus at paragraph H5, reference having been made to the differences between ordinary actions and petition processes:

“Hence the general incompetency of seeking in a petition process a remedy such as a declarator, which formally declares the pre-existence of some legal right in the applicant which the other party has denied or infringed…”

 

In other words, it is in the nature of a declaratory order that it does not consist of an application to the administrative jurisdiction of the court, but is concerned rather with seeking to enforce what is claimed to be an existing right.  Grant of the declarator sought may not be sufficient by itself to afford the applicant a practical remedy; a conclusion for declarator will usually require to be accompanied by one or more conclusions for operative remedies such as payment or interdict.  But the declarator is an ingredient of enforcement of the right alleged to exist.  It is this characteristic, rather than a formalistic exclusion from petition procedure of certain remedies, which according to current practice renders it incompetent to seek declarator in a petition.

[10]      In the present applications, Hooley seeks declarations in relation to the entitlement, according to Scots law, of the administrator to enter into contracts with Hooley for sale of the companies’ respective businesses and assets.  Neither party regards the issue as academic.  Hooley’s purpose in seeking these declaratory orders is said to be to assist it in vindicating claims in the Indian court which are, or are likely to be, resisted by others including Ganges.  That does not, in my view, amount to invoking the administrative jurisdiction of this court to obtain a power to do something that could not otherwise have been done.  The applications do not fall within the ambit of petition procedure and are accordingly incompetent.

[11]      In Chaudhry v Advocate General, I referred (at paragraphs 15-16) to the observation by Lord Malcolm in Joint Administrators of Prestonpans (Trading) Ltd, Petrs 2013 SLT 138 that the fact that the debate in that case had taken place:

“…[added] force to the recommendation of the Scottish Civil Courts Review, chaired by the [then] Lord President, to the effect that the proposed Civil Justice Council for Scotland should address the abolition of the distinction between ordinary and petition procedure in the Court of Session”.

 

In January 2016, the Scottish Civil Justice Council’s Rules Rewrite Committee agreed a work programme which includes the preparation of a discussion paper on petition and summons procedure.  I remain of the view expressed in Chaudhry that this, rather than judicial innovation, is the appropriate mechanism for change to such a long‑established practice.   

 

Lis pendens
Argument for Ganges
[12]      On behalf of Ganges it was submitted that the plea of lis pendens taken in respect of each of the ordinary actions should be sustained, and those actions dismissed.  This was a clear application of the plea: in respect of each of the summonses, two actions had been raised in the same court, being a court of competent jurisdiction, between the same parties and raising the same questions for determination.  The plea was properly stated as lis pendens rather than lis alibi pendens because the actions were before the same court:  cf Levy v Gardiner 1965 SLT (Notes) 86.  Even if the petitions were held to be incompetent (as Ganges had submitted), the ordinary actions had been raised too soon and should also be dismissed.  Ganges should not be inconvenienced by having to defend a second set of proceedings until the first had been disposed of.  There was no exception to the application of the plea in respect of pending proceedings which were, or were held to be, incompetent.  Reference was made to Maxwell, Court of Session Practice, at pages 117-118, and to the comprehensive review of the case law by Lord Fraser in Flannigan v British Dyewood Co 1971 SC 110.  At page 114, Lord Fraser concluded that “the relevant date for deciding whether the plea should receive effect or not is the date when it falls to be considered”.  So, for example, where as in Flannigan the first action had ceased to be in dependence (which occurred at the time when the expenses thereof had been paid) prior to the time when the plea had to be disposed of, the Court was not bound to sustain the plea.  In the present case, it was submitted, the relevant date was day 1 of the debate of the issues with which this opinion is concerned, at which time the petitions were still in dependence.  That was the time at which the question of double dependence fell to be addressed, and not, if later, the date when the Court reached its decision on the competency of the petitions.  The plea should therefore be sustained.

 

Argument for Hooley
[13]      On behalf of Hooley it was submitted that the cases founded upon by Ganges did not compel the court to uphold the lis pendens plea.  Dismissal of all proceedings before the court, necessitating the commencement of fresh proceedings, would be contrary to the purpose of the plea and only the clearest authority could compel it.  None of the cases relied upon were concerned with the present situation, in which both processes came before the court at the same time, with the court being asked to dismiss the earlier one as incompetent.  Reference was made to the case of Nelson v Gordon (1874) 1R 1093, in which a pursuer was allowed to proceed with a second action after lodging a minute of abandonment of the first action.  This pragmatic solution demonstrated that the court could deal with a situation such as the present one by simply allowing the correct action to proceed.

 

Decision
[14]      I accept the submission on behalf of Hooley that the circumstances of the present case are not on all fours with any of the reported decisions.  I also agree that it would not reflect creditably on our procedure if, having held the petitions to be incompetent and thus liable to be dismissed, I was also bound to uphold the plea of lis pendens and dismiss the ordinary actions with the consequence that they would have to be re‑commenced and, potentially, re‑argued to reach the procedural position currently attained.  I do not consider that I am bound by any previous authority to adopt that course of action.  Nor do I consider that it is necessary to do so in order to further the purpose of the plea which is to protect a party from a double dependence, ie the need to contest two actions with the same subject matter at the same time.

[15]      It appears to me that the common theme running through the cases cited, including in particular Nelson v Gordon, Alston v Alston’s Trs 1919 2 SLT 22 and Flannigan v British Dyewood Co, is that the court should adopt a practical approach to the plea of lis pendens and ought not to regard itself as constrained to sustain the plea in circumstances where a previously existing overlap of actions has been brought to an end.  Lord Fraser’s reference in Flannigan to the date when the plea falls to be considered was made in the circumstances of that case;  Flannigan is an Outer House decision and it is not necessary for me to attempt to construe the phrase in the context of the different circumstances of the present case.  In my opinion it is consistent with the common theme that I have identified to hold that, where the competency of petition procedure has been successfully challenged, it is unnecessary to dismiss an ordinary action raised on the same grounds merely because the two forms of action subsisted concurrently for a period prior to dismissal of the petition.  I see no reason in principle to adopt such a rigorous approach.  To require the petitioner/pursuer to begin again would be reprehensibly wasteful of time and expense.  Any inconvenience or additional cost to the respondent/defender in having had to contest two proceedings at once, prior to determination of the competency of the petition, can be recognised by an award of expenses in the unsuccessful petition process. 

[16]      For these reasons I shall repel the plea of lis pendens stated by Ganges in the three ordinary actions.

 

Substantive issues
[17]      The substantive issues for debate were set out in two Joint Notes of Issues for the parties.  In relation to Titaghur, the substantive issue for debate was stated as follows:

Whether, in circumstances where:

1. an administration order has been validly made by this Court in relation to a Scottish company and an administrator has been validly appointed to the Scottish company, all under Schedule B1 [to the Insolvency Act 1986];
2. that order and appointment were made in ignorance of an existing winding up process in relation to the Scottish company, which remains in force, under the law of a jurisdiction which is outside of the United Kingdom; and
3. the whole property of the Scottish company was at the date of the administration order, and remains, situated in, or governed by, the law of that non-UK jurisdiction

the powers of that administrator, under the Insolvency Act 1986, are limited by the non‑UK winding up, so that those powers are exercisable in relation that non‑UK property of the Scottish company only to the extent that their exercise is recognised as legally valid by the law of that non‑UK jurisdiction.

[18]      In relation to Victoria and Samnuggur, the substantive issues for debate were stated as follows (the third applying only to Samnuggur because of the winding up application):

(i)         Whether, in circumstances where:

(a)        the whole of the property of a Scottish company is situated in, or governed by the law of, a jurisdiction which is outside of the United Kingdom;  and

(b)        the Scottish company grants a floating charge over all of its property, which is legally valid under section 462 of the Companies Act 1985 and which would otherwise be within paragraph 14 of Schedule B1,

                        that floating charge, in order to be a “qualifying floating charge” within paragraph 14, must also be legally valid, as a floating charge under the law of that non‑UK jurisdiction, to secure the whole of the company’s property or substantially the whole of its property.

(ii)        Whether, in circumstances where:

(a)             the whole of the property of a Scottish company is situated in, or governed by the law of, a non-UK jurisdiction;

(b)             the Scottish company grants a floating charge over the whole of its property;  and

(c)             that floating charge is a qualifying floating charge within paragraph 14 and the holder would otherwise have the power, in reliance on that floating charge to appoint an administrator under paragraphs 14 to 21 of Schedule B1;

     that floating charge is “enforceable” within the meaning of paragraph 16 of Schedule B1 only if it is enforceable, as such a floating charge under Scots domestic law, or whether the floating charge must also be enforceable, as a floating charge, under the law of that non‑UK jurisdiction.

(iii)      Whether, in circumstances where:

(a)        an administrator has been validly appointed to a Scottish company under paragraphs 14 to 21 of Schedule B1;

(b)        the whole property of the Scottish company was at the date of that appointment, and remains, situated in, or governed by the law of, a non‑UK jurisdiction;  and

(c)        a winding up application has been made, under the law of the non‑UK jurisdiction, in relation to the Scottish company, which has not been disposed of,

the powers of that administrator, under the Insolvency Act, are limited by the non‑UK winding up application, so that those powers are exercisable in relation that property of the Scottish company, only to the extent that their exercise is recognised as legally valid by the law of that non‑UK jurisdiction.

 

The third issue is the same, mutatis mutandis, as the substantive issue in relation to Titaghur.

 

Argument for Ganges - Titaghur
[19]      The principal argument on behalf of Ganges in relation to Titaghur consisted of a series of propositions in support of a submission that this Court should refrain from hindering the Indian winding‑up by making any order which appeared to confirm the effectiveness of exercise by the Administrator of any power regarding assets in India or governed by Indian law.  Running through the various propositions, in the absence of any direct Scottish authority, was what was referred to as the principle of “modified universalism” now said to be recognised by the Supreme Court and the Privy Council as a common law principle of English law.  “Universalism” means the “administration of multinational insolvencies by a leading court applying a single bankruptcy law” (Rubin v Eurofinance SA [2013] 1 AC 236, Lord Collins of Mapesbury at paragraph 16).  The principle of modified universalism was stated by Lord Sumption in Singularis Holdings Ltd v Pricewaterhouse Coopers [2015] AC 1675 (PC) at para 15 as being that “the court has a common law power to assist foreign winding up proceedings so far as it properly can” (see also Lord Collins at paragraph 33 and Lord Clarke of Stone‑cum‑Ebony at paragraph 112).

[20]      On the basis of these and other authorities, senior counsel for Ganges advanced the following propositions:

1. The UK courts, including this Court, recognise at common law a liquidator appointed by the law of the company’s place of incorporation.
2. The UK courts, including this Court, also recognise, in appropriate circumstances, the non‑UK winding up of a non‑UK company, under a law which is not the law of that company’s place of incorporation.
3. Such recognition is clearly appropriate where, inter alia, the company has carried on all of its operations in the jurisdiction of the non‑UK winding up and all of its property is situated in or governed by the law of that jurisdiction, especially where the power to wind up is equivalent to the power of a UK court to wind up a foreign company under Part V of the Insolvency Act 1986.
4.  The second and third propositions apply even where the non‑UK winding up is of a Scottish company.
5. Recognition of a non‑UK winding up involves giving some active assistance to that insolvency process.
6. In any event, recognition of a non‑UK winding up involves giving assistance in a negative sense by refraining from any step which hinders or is likely to hinder the existing non‑UK winding up.
7. It is only the general rule that the powers of a liquidator or administrator appointed under the Insolvency Act are worldwide in the sense of being enforceable over non‑UK property.

The logical development of these propositions, taken together, was said to be that the powers of such a liquidator or administrator are, in the circumstances of this case, exercisable only to the extent that their exercise is recognised as legally valid by the law of the non‑UK jurisdiction, ie by Indian law.  That being so, this Court should answer the issue in paragraph 17 above in the affirmative, and should not pronounce the orders sought by Hooley because this would have, or be likely to have, the effect of hindering the Indian winding‑up.

[21]      Ganges’ subsidiary submission was that any order by this court should be expressly qualified to make clear that it referred only to Scots domestic law and did not presume to affect any property situated in or governed by the law of India.

 

Argument for Ganges – Victoria and Samnuggur
[22]      In relation to Victoria and Samnuggur, Ganges’ submission that this court should pronounce no order was founded upon what was said to be the proper interpretation of the two statutory provisions referred to in the first two substantive issues set out above, namely paragraphs 14 and 16 of Schedule B1 to the Insolvency Act 1986, inserted by the Enterprise Act 2002 with effect from 15 September 2003.

[23]      Paragraph 14 permits “the holder of a qualifying floating charge” to appoint an administrator.  Sub‑paragraphs (2) and (3), so far as material, provide as follows:

“(2) For the purposes of sub-paragraph (1) a floating charge qualifies if created by an instrument which—

 

(a) states that this paragraph applies to the floating charge,

 

(b) purports to empower the holder of the floating charge to appoint an administrator of the company,

 

(c) purports to empower the holder of the floating charge to make an appointment which would be the appointment of an administrative receiver within the meaning given by section 29(2), or

 

(d) purports to empower the holder of a floating charge in Scotland to appoint a receiver who on appointment would be an administrative receiver.

 

(3) For the purposes of sub-paragraph (1) a person is the holder of a qualifying floating charge in respect of a company's property if he holds one or more debentures of the company secured—

 

(a) by a qualifying floating charge which relates to the whole or substantially the whole of the company's property…”

 

[24]      Ganges’ argument was focused upon the proper construction of the word “secured” in sub‑paragraph (3).  It was submitted that in order for a floating charge to be a qualifying floating charge, it had to be legally effective in securing the whole, or substantially the whole, of the company’s property not only under Scots domestic law but also under the law of the jurisdiction in which the assets were situated.  The word “secured” had a practical as well as a legal connotation:  it did not refer to an invalid security.  It was significant that the word “purports”, used in paragraphs 14(2)(b) to (d), did not appear in paragraph 14(3).  The definition of the company’s “property” in section 436(1) of the Act included property wherever situated, implying that the debentures (ie personal obligations) had to be secured by floating charges valid under the law governing the creation of the rights secured.  Under Scots (and indeed English) private international law, the applicable law was that of the jurisdiction in which tangible assets were situated, or, in the case of rights, the law governing those rights.  There was no reason why the legal validity of floating charges should be limited to their validity under Scots law:  that interpretation would ignore the reality of a situation such as the present in which all or substantially all of the company’s property was situated in or governed by the law of a non‑UK jurisdiction which did not recognise the validity of the floating charge.  It did not matter what the grounds of non‑recognition were.  If the floating charge was not valid under the applicable law, the third objective of administration (in paragraph 3 of Schedule B1), namely realising property in order to make a distribution to creditors, could never be achieved and the court could not therefore make an administration order.  A further consideration supporting Ganges’ interpretation was that the courts, at least in England, had not treated concepts in the Insolvency Act as limited to domestic law; reference was made to NV Slavenburg’s Bank v Intercontinental Natural Resources Ltd [1980] 1 WLR 1076 and Re International Bulk Commodities Ltd [1993] Ch 77.

[25]      According to Ganges, the floating charges purportedly granted by Victoria and Samnuggur were void under Indian law because they had not been registered there.  Moreover they had been granted in breach of the Indian court order and in disobedience to the order of the Indian authority.  They did not accordingly “secure” those companies’ property, all of which was situated in India or otherwise governed by Indian law; the floating charges were accordingly not qualifying floating charges, so that Hooley had not been entitled to appoint an administrator.

[26]      Paragraph 16 states that “an administrator may not be appointed under paragraph 14 while a floating charge on which the appointment relies is not enforceable”.  It was submitted that on a proper construction of this paragraph, the floating charge must be “enforceable” not only under Scots domestic law but also under the law of the jurisdiction in which the property to be secured is situated.  That was the ordinary meaning of the word.  Reference was made to Goode, Principles of Corporate Insolvency Law (2011), paragraph 11-09, where it is stated that “enforceable” means “not only that the charge must be valid and enforceable in a general sense but also that the chargee has become entitled in particular to enforce the charge by appointing an administrator”.  To interpret paragraph 16 as requiring only enforceability under Scots domestic law gave rise to difficulties similar to those set out above in relation to paragraph 14.  It was not uncommon for a personal obligation of a Scottish company secured by a floating charge to be governed by the law of another jurisdiction.  In that situation, the floating charge could not sensibly be said to be “enforceable” if the personal obligation were not enforceable under its governing law.

[27]      The floating charges purportedly granted by Victoria and Samnuggur were not enforceable under Indian law and therefore not enforceable for the purposes of paragraph 16, for much the same reasons why they were not qualifying floating charges for the purposes of paragraph 14.

[28]      On the third issue, which arose in relation to Samnuggur only, senior counsel adopted his submissions in relation to Titaghur mutatis mutandis, including the subsidiary submission that any order that this court was minded to make should be qualified to make clear that it referred only to Scots domestic law and did not presume to affect any assets situated in or governed by the law of India.

 

Argument for Hooley – all three companies
[29]      Hooley’s starting point was that the declarators sought did not in any way interfere with the exercise of the Indian court’s powers, or even request that those powers be exercised in a particular way.  Their purpose was merely to inform the Indian court of what had occurred in Scotland, leaving it to the Indian court to decide what effect, if any, the Scottish proceedings had on property situated in India or otherwise subject to Indian law.  If the Indian court were to decide that it did not recognise the power of the Administrator to sell such property, then so be it.  By providing information, the orders could be seen as assisting rather than hindering the Indian proceedings.

[30]      As regards the Titaghur argument (and also the third issue in relation to Samnuggur), it was not suggested on behalf of Hooley that this court should not apply the principle of modified universalism as defined by Lord Sumption in Singularis (above).  The principle was, however subject to domestic law and public policy, and the court could only act within the limits of its own statutory and common law powers.  Most importantly, its purpose was to assist a court exercising insolvency jurisdiction in the place of the company’s incorporation to conduct an orderly winding up of its affairs on a worldwide basis, notwithstanding the territorial limits of its jurisdiction.  The principle could not be applied to winding up proceedings in a country other than the place of incorporation.  That indeed would hinder universalism.  The Scottish courts could recognise and assist ancillary windings up (ie winding up processes taking place other than in a court in the place of incorporation), but they did not and could not defer to such ancillary windings up.  Even if, in the present case Hooley was seeking to have the Indian court directed to do something with the assets of the company (which it was not), that would not be objectionable on the basis of the principle of modified universalism.

[31]      That being so, it was submitted that the seven propositions advanced on behalf of Ganges were unexceptionable, provided that it was understood that any winding up of a company other than in the courts of the place of its incorporation could be recognised only as an ancillary winding up.  That did not permit, far less require, the giving of any assistance or refraining from hindrance that would detract from the main insolvency process in the jurisdiction of incorporation.  The conclusion drawn by Ganges from its propositions, ie that the powers of the Administrator were exercisable only to the extent that their exercise was recognised as legally valid by Indian law, was wrong.  In fact, the reverse was true.

[32]      As regards the Victoria and Samnuggur arguments, Hooley submitted that the question whether the floating charges under which the Administrator was appointed created effective securities against assets in India should be left for determination by the Indian court.  The governing law of the floating charges was, however, Scots law, and it was submitted that in terms of Scots law the appointments were valid and created power to deal with the assets in India in the way in which the Administrator had done.

[33]      The definition of a qualifying floating charge was to be found in paragraph 14(2), which referred to a charge that “states” that the paragraph applies to it or “purports” to empower the holder to appoint an administrator.  These were matters of form, not substance, and did not invite inquiry into the validity of the charge itself.  Sub‑paragraph (3) was concerned with identification of the “holder” of a qualifying floating charge as defined by sub-paragraph (2).  The word “secured” was used only in respect of the relationship between the debenture (ie the right to repayment of a debt) and the charge.  If the charge bore to corroborate the obligation of the company in the debenture, it “secured” the debenture.  The word “secured” was not used to describe the requisite relationship between the charge and the company’s property ‑ the word used was “relates”.  There was accordingly no basis in the language of the Act for the suggestion that a floating charge was not a qualifying floating charge if it turned out not to be an effective security over the whole or substantially the whole of the company’s property.  Such an interpretation would have highly anomalous consequences if the administrator’s appointment could be invalid because of, for example, the existence of a single company asset held in a jurisdiction which did not recognise the charge.  Every appointment would be precarious.  On a proper interpretation of paragraph 14, appointment of an administrator may be made by the holder of a qualifying floating charge bearing to secure all or substantially all of the company’s property. 

[34]      With regard to paragraph 16, “enforceable” in this context meant that there had to have been a default on the part of the company or other event giving the charge‑holder the right to make the appointment:  see Lightman & Moss, The Law of Administrators and Receivers of Companies (4^th ed, 2007), paragraph 6-077.  In other words, a qualifying floating charge was enforceable if the circumstances which on the face of the instrument entitled the holder to enforce it had occurred.  Any legal aspect to that question would be determined by the law governing the floating charge.  Non‑recognition of floating charges by another jurisdiction would not necessarily equate to unenforceability:  see British South Africa Co v De Beers Consolidated Mines Ltd [1910] Ch 354, Swinfen Eady J at 387;  In re The Anchor Line (Henderson Brothers) Ltd [1937] Ch 483, Luxmoore J at 487-8.  Now that Scots law recognised floating charges (cf Carse v Coppen 1951 SC 233), there was no reason why it should not recognise the validity of a floating charge granted by a Scottish company over property situated abroad.

 

The principle of modified universalism: discussion
[34]      The principle of modified universalism has not, to date, been the subject of examination by a Scottish court.  For present purposes it is sufficient for me to say that nothing was placed before me that might indicate that it should not be recognised.  There is nothing new in a Scottish court lending assistance to foreign winding up proceedings:  see eg Queensland Mercantile and Agency Co Ltd v Australasian Investment Co Ltd (1888) 15R 935.  The same case demonstrates that Scots law has long recognised that there may be a principal liquidation in the country of the company’s incorporation and an ancillary liquidation in another jurisdiction.  In my opinion, however, Hooley is well founded in its submission that the principle of modified universalism has not been recognised by the Supreme Court or the Privy Council as applying beyond the situation where winding‑up proceedings are taking place in the jurisdiction in which the company is incorporated.  This appears most clearly from the opinion of Lord Sumption in Singularis Holdings Ltd v PriceWaterhouseCoopers (above) at paragraph 23, where the matter is put thus:

“The principle of modified universalism is a recognised principle of the common law. It is founded on the public interest in the ability of foreign courts exercising insolvency jurisdiction in the place of the company’s incorporation to conduct an orderly winding up of its affairs on a worldwide basis, notwithstanding the territorial limits of their jurisdiction. The basis of that public interest is not only comity, but a recognition that in a world of global businesses it is in the interest of every country that companies with transnational assets and operations should be capable of being wound up in an orderly fashion under the law of the place of their incorporation and on a basis that will be recognised and effective internationally.”  (My emphasis.)

 

[35]      In Re HIH Casualty and General Insurance Ltd [2008] 1 WLR 852, Lord Hoffmann suggested (paragraph 31) that in determining which jurisdiction ought to be regarded as the appropriate seat of the principal liquidation, somewhere other than the place of incorporation might be selected where, for example, the place of incorporation was “some offshore island with which the company’s business has no real connection”.  This suggestion has received no subsequent support and in Rubin v Eurofinance SA (above), Lord Collins (at paragraph 129) characterised the formulation of a new rule for the identification of courts which were to be regarded as courts of competent jurisdiction as being a matter for the legislature and not for judicial innovation.  The opinions of the majority of the members of the Privy Council in Singularis are notably cautious about extending the scope of the common law principle that the court has power to recognise and grant assistance to foreign insolvency proceedings.  I find no support for the proposition that that principle applies or ought to be applied to a court in the country of incorporation with regard to insolvency proceedings in another jurisdiction.  Nor, in my view, does the Queensland Mercantile and Agency Co decision indicate that Scots law might adopt a contrary approach.  That case concerned a company incorporated in Queensland whose principal liquidation was being carried out there.  The court found no difficulty in providing assistance to an English liquidator, while expressly recognising that the English proceedings were ancillary to the Queensland proceedings.  The case provides no direct assistance in the present situation.

[36]      For these reasons, which essentially reflect the submissions made on behalf of Hooley, I reject the proposition on behalf of Ganges that the effect of application of the principle of modified universalism to the circumstances of the present case is that the powers of the Administrator are exercisable only to the extent that their exercise is recognised as legally valid by Indian law.  On the contrary, any proceedings in India must, according to that principle as enunciated in Singularis, be regarded as ancillary to insolvency proceedings in Scotland.  The substantive issue for debate, set out in paragraph 17 above, accordingly falls to be answered in the negative.  The same applies to the third issue in relation to Samnuggur.  I deal with Ganges’ fall back position in respect of each of these issues below.

 

Interpretation of paragraph 14:  discussion
[37]      Paragraph 14 is concerned with the question: who may appoint an administrator?  It confers that entitlement upon “the holder of a qualifying floating charge”.  In order for a person to be the holder of a qualifying floating charge, two statutory conditions must be satisfied.  The first condition is that the instrument creating the floating charge must, by one means or another, bear to empower the charge holder to appoint an administrator;  this can be done expressly in the instrument or by implication by stating in the instrument that paragraph 14 applies to the charge.  The second condition is concerned with the extent of the property over which the charge holder’s debt is secured: the charge (or, if there is more than one charge or other form of security, the charges etc taken together) must relate to the whole or substantially the whole of the company’s property.  In other words, a person whose debt is secured by a charge which bears to cover less than the whole or substantially the whole of the company’s property is not “the holder of a qualifying floating charge” and cannot appoint an administrator.  Broken down thus, it can be seen that the paragraph is concerned with compliance with certain formal requirements concerning the terms of the instrument and the extent of property covered by the charge.  As was submitted on behalf of Hooley, the word “secured” in paragraph 14(3) is concerned with the relationship between the debt (referred to in the sub‑paragraph as debentures) and the charge, and does no more than describe the link between the two.  The focus of the sub-paragraph is not on this link but rather on the extent of the property to which the charge (or charges) bears (or bear) to relate.  In my opinion there is nothing in the wording of paragraph 14 to indicate that the inquiry as to whether a person is entitled to appoint an administrator need proceed further than examination of the terms of the instrument creating the charge.  In particular there is nothing to indicate that in determining whether (as required by sub‑paragraph (3)) the charge relates to the whole or substantially the whole of the company’s property, inquiry has to be made as to the validity and/or practical enforceability of the security granted by the charge with regard to property situated outside the jurisdiction under whose law it was created.  The consequence of such an interpretation, in any case in which a floating charge was granted by a company with property overseas, could be to render the validity of the administrator’s appointment uncertain for as long as it remained uncertain whether the security was effective in relation to all or substantially all of the overseas property.  Such uncertainty would deprive the administrator of the ability effectively to carry out his duties, and cannot, in my view, be what Parliament intended by use of the word “secured”.

[38]      Applying this interpretation of paragraph 14 to the circumstances of the present case, the formal validity and practical enforceability under Indian law of the floating charges granted by Samnuggur and Victoria are in my view irrelevant to the question whether Hooley fell within the statutory definition of the holder of a qualifying floating charge, so as to be entitled in terms of the Insolvency Act 1986 to appoint the Administrator.  The first of the substantive issues in relation to these companies must accordingly be answered in the negative.

 

Interpretation of paragraph 16:  discussion
[39]      In my opinion the word “while” in paragraph 16 is significant.  It indicates that the paragraph envisages that there will be a time during which a floating charge is not enforceable followed by a time during which it is.  That appears to me to provide strong support for the pursuer’s contention, based upon the passage cited from Lightman & Moss, that the purpose of paragraph 16 is to preclude the appointment of an administrator unless and until there occurs a default on the company’s part or some other event that entitles the charge‑holder to make such an appointment.  I am not persuaded that the paragraph has any broader intent.  Reference is made in it to paragraph 14 because that is the provision which contains the power to appoint.  I have to confess that I find the reference in Goode (above) to the charge also being “valid and enforceable in a general sense” somewhat difficult to understand.  Senior counsel for Ganges suggested that it was a reference to a “qualifying” floating charge in terms of paragraph 14;  I am not entirely convinced by this suggestion but if it is correct then the requirement is satisfied by the terms of the floating charge in the present case. 

[40]      In any event I reject the proposition that paragraph 16, any more than paragraph 14, invites inquiry into the practical enforceability of the floating charge in respect of any or all of the company’s property.  That would be inconsistent with the concept of a charge which, having been unenforceable, becomes enforceable.  In BCPMS (Europe) Ltd v GMAC Commercial Finance plc [2006] EWHC 3744 (Ch), Lewison J rejected a submission that an appointment could only be made if the floating charge was, and was known to be, enforceable.  He continued (paragraph 63):

“What [senior counsel for the company’s] submission amounts to is not only that an administrator may not be appointed while a floating charge is not enforceable, but that he may not be appointed while the question whether a floating charge is enforceable remains in dispute. That is not what Schedule B1 says. I do not believe that it should be so read.”

 

I respectfully agree.  I accordingly reject the submission that paragraph 16 precludes appointment of an administrator unless or until it can be established that it will be treated by the Indian court as enforceable in relation to property situated in India or otherwise subject to Indian law.  In my opinion, the second of the substantive issues in relation to these companies must also be answered in the negative.

[41]      In reaching this conclusion, I have not derived assistance from the Anchor Line case (above).  In the first place the facts were different in that that case concerned the effectiveness of an English floating charge with regard to proceeds of realisation in the hands of an English liquidator of property situated in Scotland, rather than with regard to the property itself.  Secondly, the reasoning of Luxmoore J at page 488 is dependent upon concepts of equitable security not recognised by Scots law.  As Lord President Cooper observed in Carse v Coppen (above) at page 242:

“…the Scottish Courts, or a liquidator acting under their direction, have no means of applying English equity in personam for the enforcement of an ‘equitable charge’”.

 

That, in my view, remains the position notwithstanding the subsequent introduction of floating charges to the law of Scotland.  I note further in passing that in Carse v Coppen Lord Keith (page 248) appeared to doubt whether Anchor Line had been correctly decided.

 

Disposal
[42]      The foregoing opinion exhausts the matters set out in the parties’ joint note of issues for debate.  Senior counsel for Hooley submitted that the court should repel the answers to the three petitions and grant the prayers, dismissing the summonses as unnecessary;  or, alternatively, grant decree in terms of the conclusions of the three summonses.  Senior counsel for Ganges, on the other hand, insisted that no substantive orders could be granted in favour of Hooley without further procedure and, in particular, without evidence as to the effectiveness (or otherwise) under Indian law of this court granting the orders sought.  At the by order hearing on 21 September I heard brief argument on the terms of any order that the court might pronounce and indicated that I might in this opinion express a preliminary view on the terms of the order, while reserving to Ganges the right to argue that no order should be pronounced without further procedure.  On reflection it seems to me that the best course is simply for me to issue this opinion and put the case out by order once again so that parties may address me as to what further procedure, if any, is necessary and, if no further procedure is required, on the terms of the order.  That will include discussion of Ganges’ subsidiary submission that any order by this court should be expressly qualified to make clear that it referred only to Scots domestic law.