Jersey Unreported Judgments

Companies - consequential orders following appeal

[2020]JCA266

Court of Appeal

22 December 2020

Before     :

James McNeil, Q.C; Sir William Bailhache and Jeremy Storey, Q.C.

 

Advocate D. M. Cadin for the Appellants.

Advocate A. D. Hoy for the Respondent.

judgment

BAILHACHE ja:

1.        Two applications have come before us following the handing down on 14^th December of our judgment on the substantive appeal (Energy Investments Global Limited and Heritage Oil Limited v Albion Energy Limited [2020] JCA 258), which we are dealing with on the papers, having received both the applications and responsive submissions from the other party.  This is the judgment of the Court and addresses those applications; we use the same terms as adopted in our substantive judgment.

Leave to appeal to the Privy Council.

2.        The Respondent seeks leave to appeal our judgment to the Judicial Committee of the Privy Council in respect of our decision that it was not entitled to appropriate the Escrow monies as it purported to do on 2^nd October, 2020 to payment of the post- and pre-judgment interest before application towards the balance of the Consideration.  It does so on the basis of its claim that the arguable point of general public importance is whether there is anything to prevent a creditor choosing to which liabilities of a debtor monies paid should be appropriated when the debtor has not identified, and indeed could not identify, any liability because it was not the payer of the funds.  On the facts here, the payer was the English firm of solicitors holding the Escrow funds which had been received from the debtor pursuant to the Escrow Agreement.

3.        This Court has jurisdiction to grant leave under Article 14(1) of the Court of Appeal (Jersey) Law 1961.  The test for granting leave or permission to appeal is not in dispute between the parties and is well settled.  Permission to appeal is granted in civil cases where there is an arguable point of law of general public importance which ought to be considered by the Judicial Committee at this time.  As said by this Court at paragraph 23 of its judgment in Boru Hatlari Ile Petrol Tasima SA v Tepe Insaat Sanayii [2016] (2) JLR 511:

"As that is the threshold which the Appeal Panel will apply in the event that we refuse leave and an application is made to the Privy Council for special leave, it appears to this court that we would not be permitted to adopt a lower threshold. Indeed, it may be said that a court of appeal in such a situation should actually adopt a stricter threshold simply because the Appeal Panel of the Judicial Committee can permit an appeal to proceed even where leave or permission has not been given by the court below, whereas the Judicial Committee cannot prevent the pursuing before it of an appeal where leave or permission should not have been given by that court of appeal. "

4.        We do not consider that on the facts of this case there is a relevant point of law which arises for further argument.  As we set out in paragraph 67 of the substantive judgment, this was not a case in which the law of appropriation applied.  The Escrow monies were fixed by the Escrow Agreement with the acceptance that they would be applied towards the final payment of the Consideration, less any sums which might be agreed to be due under the various claims being made against Mr Buckingham.  As set out in the substantive judgment, this finding is one which represented the agreed position of the parties on the pleadings.  The issue as to whether a payment to a creditor made by stakeholders, who had received from a debtor monies which had not been allocated to any particular debt owed by that debtor to the creditor, may or may not be an arguable point of law of public importance but it does not arise on the facts here.

5.        In any event, we do not think there is any particular feature in Jersey which makes it critical that such a point be argued at this time.  In that respect, this case is wholly different from that of Equity Trust v E [2019] JCA 188, where for the reasons given in that judgment, leave to appeal was given, the case raising important issues of trust law in the financial services sectors of both England and Jersey.

6.        In its application for leave, the Respondent sought to raise other arguments which were not raised before us.  We do not think that is an appropriate basis on which to give permission to appeal to the Judicial Committee, but to the extent it is said that there is an arbitration provision in the Escrow Agreement which applies so as to prevent this court reaching the conclusion it did, we add that in the courts of Jersey, the effect of the Escrow Agreement was for the courts of this jurisdiction to determine as relevant for the purposes of giving directions in respect of a security interest under Jersey law pursuant to the Security Law; and it would be inappropriate that the court should either direct arbitration on the point or hold back on a judgment requested of it until such time, if at all, as the parties took to arbitration the matter now sought to be raised.

Discharge of Injunction

7.        By an Order of Justice signed on 12^th June, 2020, the Bailiff ordered an ex parte injunction prohibiting the Appellants from doing anything "which would otherwise cause the loss or loss to or diminish the value of the Final Tranche Shares". The terms of the Order were varied on 19^th June at a hearing before the Bailiff and there was subsequently an application before him to discharge the Order altogether.  This application failed for the reasons set out in the Bailiff's judgment of 10^th August, 2020 (Albion Energy Limited v Energy Investments Global Limited and Heritage Oil Limited [2020] JRC 160).  Although there appears to be no Act of Court setting out the amended injunction, that judgment does set out those terms. 

8.        As the basis for obtaining the injunction lay in the asserted need to protect the value of the Collateral defined in the SIA, and the SIA existed to secure the payment of the Consideration, it is said that now the Consideration has been paid by the application of the Escrow monies, the injunctions should be discharged.

9.        In our judgment, the matter may be more complex than is presented.  We note that at paragraph 14 of the Order of Justice, the Respondent Plaintiff referred to the judgment for $13,333,334 and pre- and post-judgment interest and claimed that "accordingly, the Escrow Amount of $13,333,334 is insufficient to meet in full the liability of [the First Appellant] under the High Court Order."  It is therefore apparent that an element in the justification for obtaining of the injunction went beyond the payment of the outstanding consideration.

10.      In the circumstances, it appears to us that it would be better for the parties to apply to the court below for such variation of the injunctions as is contended to be appropriate, if indeed common sense does not prevail and agreement is not reached.

Authorities

Energy Investments Global Limited and Heritage Oil Limited v Albion Energy Limited [2020] JCA 258. 

Court of Appeal (Jersey) Law 1961. 

Boru Hatlari Ile Petrol Tasima SA v Tepe Insaat Sanayii [2016] (2) JLR 511. 

Equity Trust v E [2019] JCA 188. 

Albion Energy Limited v Energy Investments Global Limited and Heritage Oil Limited [2020] JRC 160