In re Peak Hotels and Resorts Ltd - Viewing document

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[2019] WLR(D) 130

Chancery Division

In re Peak Hotels and Resorts Ltd (in liquidation)

Candey Ltd v Crumpler and another

[2019] EWHC 282 (Ch)

2018 July 10–13;

2019 Feb 15

Andrew Hochhauser QC sitting as a deputy High Court judge

Solicitor— Costs— Conditional fee agreement— Success fee— Court recognising foreign liquidation as foreign main proceeding— Foreign representative seeking determination from English court— Opposing party retaining solicitors under conditional fee arrangement with 100% success fee— Costs order made against foreign representative— Whether in bringing proceedings representative acting in capacity of liquidator of company being wound up in England and Wales— Whether success fee recoverable in costs order against representative— Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 5 and Saving Provision) Order 2013 (SI 2013/77), art 4(c)

The company went into liquidation in the British Virgin Islands. A dispute arose between the firm of solicitors which acted for the company in litigation in London and its liquidators. In order to obtain a determination from the English court, the liquidators brought an application under the Cross-Border Insolvency Regulations 2006 for recognition of the company’s liquidation as the foreign main proceeding. Having been dismissed by the liquidators, the solicitors instructed C llp, another firm of lawyers, and entered into a conditional fee arrangement with them, by which a 100% success fee was payable to C llp in the event of the solicitors being successful in litigation against the liquidators. Following an application brought by the liquidators, they were ordered to pay the solicitors’ costs. C llp’s success fee was potentially recoverable from the liquidators if, for the purposes of article 4(c) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 4 and Saving Provisions) Order 2012, the liquidators’ application constituted proceedings brought by a person acting in the capacity of a liquidator of a company which was being wound up in England and Wales.

On the hearing of a preliminary issue—

Held, recognition under the Cross-Border Insolvency Regulations 2006 meant that the foreign liquidation was treated in many respects by the court as if the foreign company was in liquidation in England and Wales, and allowed the foreign representative to obtain certain forms of relief. However, the liquidation remained expressly a foreign proceeding and the liquidator a foreign representative. Accordingly, a foreign representative of a foreign main proceeding did not, for the purposes of article 4(c) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 4 and Saving Provisions) Order 2012, act in the capacity of a liquidator of a company which was being wound up in England and Wales (paras 70–72).

David Lord QC, Daniel Saoul and Stephen Ryan for the solicitors.

David Holland QC and Stephen Robins for the joint liquidators.

Sarah Addenbrooke, Barrister