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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Harbour Castle Ltd v David Wilson Homes Ltd [2019] EWCA Civ 505 (27 March 2019) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2019/505.html Cite as: [2019] EWCA Civ 505 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
William Trower QC (sitting as a Deputy High Court Judge)
HC-2016-003568
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DAVID RICHARDS
and
LORD JUSTICE LEGGATT
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HARBOUR CASTLE LIMITED |
Appellant |
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- and - |
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DAVID WILSON HOMES LIMITED |
Respondent |
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Alan Gourgey QC and Tom Hickman (instructed by DLA Piper UK LLP) for the Respondent
Hearing dates: 7 March 2019
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Crown Copyright ©
Lord Justice David Richards :
"In cases, therefore, in which the respondent to the appeal suggests that the necessary funds would be made available to the company by, say, its owner, the court can expect to receive an emphatic refutation of the suggestion both by the company and, perhaps in particular, by the owner. The court should therefore not take the refutation at face value. It should judge the probable availability of the funds by reference to the underlying realities of the company's financial position; and by reference to all aspects of its relationship with its owner, including, obviously, the extent to which he is directing (and has directed) its affairs and is supporting (and has supported) it in financial terms."
"In the present case, there is no doubt that the breach of the order made by Master Marsh…was deliberate in the sense that HCL (through Mr Jeans as its directing mind) knew of its terms and made an informed choice not to comply with it."
"…the evidence does not justify a conclusion that HCL did not have access to the means of providing the security ordered; it only justifies a conclusion that, for commercial reasons which it (together with GBGB and Mr Jeans) considered outweighed the consequences of the failure to provide security, it took a decision that it would not comply." (emphasis added)
"I agree that there is in any event an air of unreality about HCL's submissions…In the light of the fact that Mr Jeans, as HCL's directing mind, says in his own evidence that he reluctantly accepted that he had to let the litigation go because he had decided "to focus on saving the business of both HCL and GBGB at that time", I do not accept that, even if a stifling argument had been made, the court would have concluded that HCL did not have access to sufficient funding to pursue the First Action if HCL's directing mind, acting in that capacity, had determined that pursuit of the First Action was the right thing to do."
"As matters presently stand the evidence remains consistent with the fact that the decision Mr Jeans made was made both in his own right and in his capacity as the directing mind acting on behalf of HCL and the other entities (such as GBGB) to whose affairs it related."
Leggatt LJ:
Longmore LJ:
I also agree.