Cabvision Ltd v Feetum & Ors

This is an appeal by Cabvision Ltd (“CV”), the third defendant in the action, against an order made by Lewison J on 5 January 2005. The respondents to the appeal are the first three claimants in the action, Mr Leonard Feetum, Mr Stephen Marsden and Mr Simon Smith. They are among the five founder members of a limited liability partnership known as Tower Taxi Technology LLP (“the LLP”). The LLP is the fourth defendant in the action.

On or about 3 December 2004 CV purported to appoint the first two defendants in the action, Mr Mark Levy and Mr Jeremy Berman, as administrative receivers of the LLP pursuant to a power in that behalf contained in a Debenture dated 5 April 2004 granted by the LLP to CV (“the Debenture”).

In the action, the respondents and the two remaining founder members of the LLP, Mr Sharp and Mr Church (the fourth and fifth claimants in the action), challenge the validity of that appointment. They contend firstly that as at the date when the appointment was purportedly made no ‘Insolvency Event’ (as defined in the Debenture) had occurred, and accordingly that the power to appoint administrative receivers had not arisen; and secondly that in any event the Insolvency Act 1986 (“the 1986 Act”), as amended by the Enterprise Act 2002 (“the 2002 Act”), prohibits any exercise of the power. CV joins issue on these contentions. It further contends that the respondents do not have the requisite status (locus standi) to bring the action, and that only the LLP can do so.

Mr Sharp and Mr Church have taken no part in this appeal. Mr Sharp provided us with a witness statement on behalf of himself and Mr Church, in which he explained their position and made a number of factual observations. We have read that witness statement, but in the event neither Mr John McDonnell QC (for CV) nor Mr Paul Girolami QC (for the respondents) found it necessary to refer to it in the course of argument. In the circumstances, there is no need for me to consider it further.

Before the judge Mr Levy and Mr Berman adopted a neutral stance as to the validity of their appointment, and they too have taken no part in this appeal.

Hence the dispute on this appeal is between CV on the one hand and the respondents on the other.

The action was commenced on 17 December 2004. Due to the perceived urgency of the matter, application was made to Lindsay J on 23 December 2004 for directions. He directed that the issue as to status (which I shall call “the status issue”) and the issue as to whether the 1986 Act, as amended by the 2002 Act, prohibited the exercise of the power to appoint administrative receivers (which I shall call “the 1986 Act issue”) be listed to be heard by 6 January 2005 as an application for summary judgment under CPR Part 24. In the event, the application was listed before Lewison J on 5 January 2005. The hearing lasted a full court day. At the conclusion of the hearing the judge adjourned for a few minutes and then delivered judgment. His judgment, delivered under conditions of great pressure and effectively extempore, is, if I may respectfully say so, of a very high quality: higher, certainly, than I could have achieved in similar circumstances. For those who wish to refer to it, it is now reported at [2005] 1 WLR 2576.

In his judgment, the judge resolved both the status issue and the 1986 Act issue in favour of the respondents. Accordingly he granted substantive relief on the claim, declaring by his order that CV’s appointment of Mr Levy and Mr Berman as administrative receivers of the LLP was prohibited by the 1986 Act and thus invalid.

The judge refused permission to appeal, but permission was granted by Jacob LJ on the papers on 11 February 2005.

CV is a UK resident company which carries on the business of generating revenue from advertising in taxicabs. It has developed a computer software system known as ‘ICT Software’ for the display of information, entertainment and advertising on a screen installed in the passenger compartment of the cab. The screen is activated when the passenger enters the cab. The sound volume can be controlled by the passenger, but the visual display on the screen can only be turned off by the cab driver.

By December 2003 the development of the system had reached the stage where CV was seeking third party investors, with a view to the commercial exploitation of the system by generating revenues from the advertising displayed on the screens. The LLP was designed by the claimants (who are tax advisers) as the vehicle for raising the desired investment in the project. The attraction of the investment lay in the opportunity for higher rate taxpayers to claim tax relief in the form of capital allowances in an amount greater than the amount of their investment. This opportunity was created by ‘gearing up’ the amount of capital invested by individual subscribers to the project by the addition of a bank loan of an amount equal to three times the capital so subscribed. Thus 25 per cent of the total capital available to the project would represent capital subscribed by investors and the remaining 75 per cent would represent bank borrowing. In consequence, for every £25 invested a higher rate taxpayer could expect to obtain tax relief in a sum of £40.

The LLP was incorporated on 21 March 2003 under the Limited Liability Partnerships Act 2000 with the name ‘Tower Taxi Technology One LLP’. Its name was subsequently changed to its present name. The claimants (that is to say, the respondents together with Mr Sharp and Mr Church) were its founder members.

Following discussions between the claimants and the management of CV, it was decided that the aim of the project should be to install the system in up to 10,000 cabs. The claimants and CV further concluded that in order to fund the project up to that level the LLP would need to raise £90M, £75M of which would cover the maximum cost of acquiring the necessary licences from CV, and the remaining £15M of which would be required to meet associated costs (including installation costs). This in turn meant that a maximum of £22.5M would need to be raised by way of capital subscribed to the LLP, and a maximum of £67.5M by way of bank loan.

By an Agreement (“the LLP Agreement”) dated 4 December 2003 and made between the claimants and the LLP, it was agreed that the LLP would enter into a number of specified agreements (‘the Approved Contracts’). These included an agreement with CV for the purchase by the LLP of the necessary licences to exploit the ICT Software (‘the ICT Software Agreement’), and an agreement with a bank (in the event, Lloyds TSB Bank plc) for a facility of up to £67.5M (‘the Facility Agreement’).

The LLP Agreement recited that the LLP would seek to raise capital to finance the project (i.e. up to £22.5M) by the issue of shares in the LLP (‘Participating Shares’). It provided (in clause 2.2) that the LLP was incorporated solely to acquire and exploit the ICT Software, and (in clause 2.7) that the Approved Contracts should be entered into and completed as soon as practicable. Clause 6 of the LLP Agreement provided that the claimants (referred to as ‘Designated Members’) should constitute the first members of the board of the LLP and that the business and affairs of the LLP should be managed and controlled by the board.

The ICT Software Agreement was dated the following day, 5 December 2003. By clause 2.1 of that agreement CV granted to the LLP an exclusive licence to use the ICT Software in up to 10,000 cabs on payment of ‘the Price’. ‘The Price’ was defined as meaning “£75,000,000 … or such other sum as may be calculated after taking into account any reductions in the Price arising pursuant to clause 3 …”. Clause 3.1 provided that the Price would be unconditionally due on the date of the agreement and would be paid by 31 March 2004. Clause 3.2 provided a mechanism for reducing the price proportionately in the event that less than the maximum amount of £22.5M should have been subscribed by that date. Clause 3.3 enabled the LLP to pay additional amounts on account of the price (i.e. up to the maximum of £75M) should further capital be subscribed thereafter. The ICT Software Agreement contained no provision for a minimum price. By clause 3.7 CV undertook to procure a bank loan to assist the LLP in paying ‘the Price’, together with guarantee from another bank as security for the loan.

On the same day, 5 December 2003, the LLP issued an Information Memorandum under the title ‘An opportunity to participate in an innovative new business’. The Information Memorandum described in some detail the nature of the project and the expected tax advantages for investors who were higher rate taxpayers. It also introduced the requirement of a minimum level of subscriptions of £6.25M, failing which the project (and hence the purchase of the ICT Software from CV) would not proceed. Under the heading ‘Bank Funding’ the Information Memorandum stated that the LLP had received an offer in principle from a major UK clearing bank (i.e. Lloyds) to lend to the LLP, “(although for tax purposes the loan would be deemed to have been made to the individual members of the LLP)”, an amount equal to three times the aggregate amount of capital subscribed by the members – an amount which was capped at £22.5M. The final closing date for subscriptions was stated to be 31 March 2004.

On 10 February 2004 the Inland Revenue issued a Press Release announcing an imminent change in the tax relief available to members of the LLP, in that in order to qualify for tax relief, borrowing would have to be made by the members of the LLP individually rather than by the LLP itself. This led to applications for subscriptions to the LLP being closed as from 25 March 2004.

On 16 March 2004 the LLP entered into the Facility Agreement with Lloyds, whereby Lloyds agreed to make available to the LLP a loan of up to £67.5M. Clause 4 of the Facility Agreement provided as follows (so far as material):

Clause 6 of the Facility Agreement provided that the loan was to be drawn down in a single tranche on or before 31 March 2004 and that any unused balance of the facility would be cancelled.

As to the level of subscriptions, Mr Feetum says this in paragraphs 55 and 56 of his first witness statement:

In the event, subscriptions as at the closing date totalled £6,780,894 (i.e. only some £530,000 more than the minimum level of subscriptions specified in the Information Memorandum), and the LLP accordingly drew down three times that amount (i.e. £20,342,682) under the Facility Agreement. On 2 April 2004 completion took place under the ICT Software Agreement.

On 5 April 2004 the Bank of Scotland guaranteed the Lloyds loan, in consideration of an indemnity by CV secured by a cash deposit representing part of the price paid under the ICT Software Agreement. The LLP in turn indemnified CV in respect of CV’s liability under its own indemnity to the Bank of Scotland, the LLP’s indemnity to CV being secured by the Debenture.

Clause 10 of the Debenture contains a power for CV to appoint an administrative receiver over the LLP’s property and undertaking on the occurrence of an ‘Insolvency Event’, as defined in clause 1.9 of the Debenture. For present purposes, nothing turns on the precise terms of the power.

On 3 December 2004 CV purported to appoint Mr Levy and Mr Berman as administrative receivers of the property and undertaking of the LLP, contending that an ‘Insolvency Event’ had occurred (a contention which, as I noted earlier, is disputed by the LLP). On the following day, 4 December 2004, Mr Levy and Mr Berman purported to accept that appointment.

By letters dated 7 December 2004 Mr Levy and Mr Berman, purportedly acting under their appointment as administrative receivers, required the claimants, as Designated Members of the LLP, to submit a statement of affairs within 21 days in accordance with section 47 of the 1986 Act (subsection (1) of which provides that where an administrative receiver has been appointed he shall forthwith require some or all of various specified classes of person including the officers of the company – or, in the instant case, the LLP – to submit a statement of affairs), and to carry out or observe a number of further requirements.

The Limited Liability Partnerships Act 2000 (“the 2000 Act”) provides (by section 1(2)) that a limited liability partnership is a body corporate, “with legal personality separate from its members”. Section 14(1) of the 2000 Act provides for the making of regulations about the insolvency or winding up of limited liability partnerships by reference to the 1986 Act.

Regulation 5 of the Limited Liability Partnerships Regulations 2001 (made pursuant to section 14(1) of the 2000 Act) applies Parts I – IV of the 1986 Act to limited liability partnerships. It is common ground that the effect of Regulation is to apply those Parts of the 1986 Act as amended from time to time.

Parliamentary debate on the Enterprise Bill (which eventually became the 2002 Act) was preceded by the publication in July 2001 of a White Paper (Cm. 5234) entitled “Productivity and Enterprise: Insolvency – A Second Chance”.

The White Paper included the following:

restrict the right to appoint an administrative receiver to the holders of floating charges granted in connection with certain transactions in the capital markets (paragraphs 2.2 – 2.6 and 2.18); and

seek to streamline the administration procedure so that it becomes a fully effective procedure in all circumstances. …

CORPORATE INSOLVENCY PROPOSALS

Throughout this period [sc. of the last twenty-five years or so] there has also been widespread concern as to the extent to which administrative receivership as a procedure provides adequate incentives to maximise economic value. There has, equally importantly, been concern about whether it provides an acceptable level of transparency and accountability to the range of stakeholders with an interest in a company’s affairs, particularly creditors. For secured lenders, administrative receivership is an important mechanism, not least given that it is one over the inception of which they have complete control. Since 1986, a person acting as an administrative receiver of a company has had to be an authorised insolvency practitioner. There is little doubt that the existence of professional obligations on insolvency practitioners has had a beneficial effect on the way in which they discharge their duties. But the fact remains that, notwithstanding recent case law, an administrative receiver’s principal obligation is towards his appointor. At law, they remain substantially unaccountable to any other creditor for the way in which a company’s assets are dealt with. There is no equivalent of the duty owed by an administrator in an administration procedure to act in the interests of the creditors as a whole.

The maximisation of recoveries and the minimisation of costs are areas where the lack of a wider and more general accountability, and with it the absence of properly aligned incentives, can impact very substantially on the interests of unsecured creditors in an administrative receivership. For example, an administrative receiver is entitled to solely consider the interests of his or her appointor when determining the timing of a sale of a business. Where an offer is made which is sufficient to satisfy the secured creditor’s claim and the administrative receiver’s costs, there would appear to be little incentive for the receiver to delay the sale with a view to obtaining a better offer which might provide some return for unsecured creditors. Furthermore, it should be borne in mind that unsecured creditors have no right to challenge the level of costs in a receivership, even though they have an identifiable financial interest where there are sufficient funds to pay the secured creditor in full. The Insolvency Act 1986 (Sections 46, 48 and 49) did introduce requirements on administrative receivers to notify and report to creditors and provides for the possibility of a committee of creditors being established. But, in practice, very few such committees are appointed. Finally, it seems clear that the increasing importance of the international dimension in insolvency is likely to highlight the poor fit between international law, based on collective procedures, and administrative receivership. Taking all these factors into account, we do not believe that the present framework for administrative receivership provides an adequate basis for accountability or properly aligned incentives in relation to the bulk of cases giving rise to administrative receivership.

The Government’s view is that, on the grounds of both equity and efficiency, the time has come to make changes which will tip the balance firmly in favour of collective insolvency proceedings, proceedings in which all creditors participate, under which a duty is owed to all creditors and in which all creditors may look to an office holder for an account of his dealings with a company’s assets. It follows that we believe that administrative receivership should cease to be a major insolvency procedure. We therefore propose to restrict the right to appoint an administrative receiver to the holders of floating charges granted in connection with transactions in the capital markets as described in paragraph 2.18.

The Government recognises that the floating charge and the right to appoint an administrative receiver plays an important role in certain transactions in the capital markets. We will allow the right to appoint an administrative receiver to continue where floating charges are granted in relation to such transactions. Situations identified in Part VII of the Companies Act 1989 will fall outside the scope of our proposals.

In the course of its passage through the House of Commons the Enterprise Bill underwent a large number of amendments, and the 2002 Act, when finally enacted, contained a number of provisions which were not foreshadowed in the White Paper.

Section 250 of the 2002 Act introduced into the 1986 Act sections 72A to 72H (headed ‘Prohibition of Appointment of Administrative Receiver’) and Schedule 2A thereto. It is also to be noted that section 258 of the 2002 Act introduced into the 1986 Act (by Schedule B1 thereto) a revised regime for administration.

Section 72A of the 1986 Act provides that “the holder of a qualifying floating charge in respect of a company’s property may not appoint an administrative receiver of the company”. (For ‘company’ read ‘limited liability partnership’: see regulation 5 quoted earlier.) It is common ground that the Debenture is a “qualifying floating charge” for this purpose. There then follow, in sections 72B to 72G, six exceptions to that general prohibition.

The first exception, which is contained in section 72B, relates to capital markets. It would appear that this was the exception referred to in the White Paper. Initially, CV relied on section 72B in the instant case, but such reliance was abandoned shortly before the hearing below. The second and third exceptions (contained in sections 72C and 72D) relate respectively to public-private partnerships and utilities. They have no application in the instant case. It is on the fourth exception (contained in section 72E) that the argument both before the judge and in this court has focused.

Section 72E is in the following terms:

Before the judge the issues arising under section 72E were (i) whether the LLP is a ‘project company’; (ii) whether the project on which it is engaged is a ‘financed project’; and (iii) whether it includes ‘step-in rights’. The judge answered the first question in the affirmative, and there is no cross-appeal by the respondents in relation to that. He answered the remaining questions in the negative, and those are the live questions on CV’s appeal so far as the 1986 Act issue is concerned. However, in the course of argument Mr McDonnell relied on the meaning of the expression ‘project company’ as set out in paragraph 7 of Schedule 2A, and I accordingly refer to that paragraph below.

The fifth and sixth exceptions (contained in sections 72F and 72G) relate respectively to financial markets and registered social landlords, and are not material for present purposes.

As to the meaning of the expression ‘step-in rights’, paragraph 6 of Schedule 2A provides as follows:

As noted earlier, paragraph 7 of the Schedule deals with the meaning of the expression ‘project company’ as follows:

In paragraphs 6 to 9 of his judgment the judge addressed the status issue. Before him, Mr McDonnell had submitted that if any wrong had been done, it had been done not to the claimants but to the LLP; and accordingly that the only proper claimant was the LLP itself. For the claimants, Mr David Mabb QC had submitted that the claimants had interests in the issues raised in the action in their own right, in that if they refused to comply with the requirements of Mr Levy and Mr Berman as set out in their letters dated 7 December 2003 they could find themselves exposed to civil, or even criminal, liability.

In paragraph 9 of his judgment the judge said this:

The judge accordingly turned to the questions raised by section 72E. After setting out the factual and legislative background, the judge (in paragraphs 31 to 34 of his judgment) addressed the question whether the LLP was a ‘project company’ for the purposes of section 72E. In the result he found that it was (and as already noted, there is no cross-appeal by the respondents against that finding).

In paragraphs 35 to 45 of his judgment, the judge addressed the question whether the project on which the LLP was engaged was a ‘financed project’ for the purposes of section 72E. Before him, Mr McDonnell had argued (as he has argued once again before us) that the relevant ‘agreement’ for the purposes of the expression ‘under an agreement’ in section 72E(2)(a) was the ICT Software Agreement; and that under that agreement the LLP was, as at the date of the agreement (5 December 2003), ‘expected to incur’ a debt of at least £50M for the purposes of carrying out the project. For the respondents, Mr Mabb had argued that the relevant agreement was the Facility Agreement; that the relevant date for assessing whether the expectation existed was accordingly 16 March 2003; and that the evidence before the court did not establish that the requisite expectation existed as at that date.

Addressing the question whether the relevant agreement for the purposes of section 72E(2)(a) was the ICT Software Agreement or the Facility Agreement, the judge said this (in paragraphs 38 to 40 of his judgment):

The judge then turned to the question whether the requisite expectation existed as at the date of the Facility Agreement (16 March 2004). After referring to the witness statements of Mr Feetum and of Mr Jens Hills of Messrs Jens Hills & Co, CV’s solicitors, the judge concluded (in paragraph 45 of his judgment) that:

In paragraphs 46 to 49 of his judgment the judge turned to the question whether the project included ‘step-in rights’, saying this:

The judge accordingly held that the project did not fall within section 72E(1) since it was not a ‘financed project’ and it did not include ‘step-inrights’.

Shortly before the hearing of the appeal, Mr Girolami conceded that the factual issue as to the existence at the relevant date (whether that date be 5 December 2003 or 16 March 2004) of the expectation described in section 72E(2)(a) was not apt to be decided on an application for summary judgment, so that if the success or failure of the appeal turned on that issue, there would have to be a trial on that issue. In the light of that concession, Mr McDonnell did not find it necessary to proceed with a proposed application to adduce additional evidence.

By ground 1 of its grounds of appeal, CV raises the status issue once again, contending that the rule in Foss v. Harbottle (1843) 2 Hare 461 applies to a limited liability partnership, and that none of the recognised exceptions to that rule is applicable in the instant case. Reliance is also placed on the fact that the claimants have neither applied for nor been granted permission to proceed under CPR Part 19.

By ground 2 of its grounds of appeal CV contends that the judge wrongly construed section 72E(2)(a), and that, having regard to the purpose of the various statutory exceptions to the general prohibition on the appointment of administrative receivers by the holder of a qualifying floating charge, the words ‘expected to incur’ must have been intended to be applied objectively at an early stage of the project so that the parties would know whether the exception applied. It is contended that the test should be satisfied when under the terms of the project (1) a loan in excess of the amount of the threshold is or will be available and (2) the parties intend that an amount in excess of the threshold will be drawn down if the project succeeds; and that although the ICT Software Agreement was the relevant agreement, the test was satisfied both at the date of that agreement (5 December 2003) and at the date of the Facility Agreement (16 March 2004).

By ground 3 of its grounds of appeal CV contends that in relation to ‘step-in rights’ the judge ought to have found that a power to appoint an administrative receiver might amount to ‘step-in rights’ depending on whether the powers granted were sufficient to fulfil the requirements of paragraph 7 of Schedule 2A; and that in the instant case the power granted by clause 10 of the Debenture did amount to ‘step-in rights’ since it enabled the receiver to make ‘arrangements for carrying out all or part of the project’, within the meaning of paragraph 6(1)(b).

By a Respondent’s Notice, the respondents invite us to uphold the judge’s finding on the status issue on the additional ground that the claimants have the requisite status to bring the claim not merely in their capacity as Designated Members of the LLP but also in their capacity as ordinary members of it. It is contended that their rights and/or interests as ordinary members of the LLP were vitally affected by the validity or otherwise of the appointment of administrative receivers, since the LLP is effectively ‘transparent’ for tax purposes and the tax advantages to which they would otherwise have been personally entitled would be put at risk if the appointment were found to be valid.

Mr McDonnell repeats the submission made below (and rejected by the judge) that the rule in Foss v. Harbottle applies in the instant case, and that the respondents cannot bring themselves within any of the exceptions to that rule. In particular, he submits that if (which is denied) the appointment of administrative receivers was invalid, any loss caused by that wrongful appointment can have been suffered only by the LLP, and hence that only the LLP can sue in respect of it. He further submits that it is not open to the claimants to commence a derivative action in the name of the LLP, under the exception to the rule in Foss v. Harbottle explained by this court in Prudential Assurance v. Newman Industries (No 2) [1982] Ch 204 (“Newman”) at 210D-211A, since if CV’s factual allegations as to the conduct of the claimants are made outthe position will be that the wrongdoers in control of the LLP are none other than the claimants themselves. He submits that one of CV’s purposes in appointing administrative receivers was to safeguard the interests of ordinary members.

Mr McDonnell further submits that a claimant should not be permitted to, in effect, circumvent the rule in Foss v. Harbottle by claiming a declaration instead of damages. As to the court’s jurisdiction to make a declaration, he relies on Meadows Indemnity Co Ltd v. The Insurance Corporation of Ireland & Anor. [1989] 2 Lloyds Rep 298 CA (“Meadows”). In Meadows this court considered the well-known passage in Lord Diplock’s speech in Gourietv. Union of Post Office Workers [1978] AC 435 (“Gouriet”)dealing with the court’s jurisdiction to grant declaratory relief.

In Gouriet (at p.501) Lord Diplock said this:

In Meadows this court endorsed Lord Diplock’s statement that the court’s jurisdiction to grant declaratory relief is limited to cases where legal rights are contested. In Meadows itself there was no issue directly between the claimant and the defendant, and declaratory relief was accordingly refused. In the course of his judgment, Neill LJ referred (at p.305) to “the general policy of the law to resolve disputes between all parties in one set of proceedings”. May and Nourse LJJ agreed with Neill LJ. In the course of his judgment, May LJ said this (at p.309):

Mr McDonnell relies on Meadows as authority for the proposition that, based on the above passage from Lord Diplock’s speech in Gouriet, the jurisdiction to make a declaration is limited to cases in which there is a contested issue as to the legal rights of the parties represented in the litigation before the court, and that the fact that a party has a direct interest in the outcome of the litigation will not suffice to confer jurisdiction in the absence of a direct issue between the parties. In the alternative, he submits that if and to the extent that the court has a discretion in the matter of granting a declaration, that discretion should not be exercised in the circumstances of this case, given that the claimants are a minority of the members of the LLP. Otherwise (as he submits) any individual director or employee who for some reason objects to a purported appointment of receivers could challenge the appointment, even if the company (or, as the case may be, the limited liability partnership) is content with the appointment and has no wish to challenge its validity.

Mr McDonnell also relies on the decision of this court in Secretary of State for Trade and Industry v. Jabble & Ors [1998] 1 BCLC 598 (“Jabble”). In Jabble the claimant Secretary of State had issued proceedings under section 6 of the Directors’ Disqualification Act 1986 against the defendant directors of a company (McIvor Spirits Ltd) which had some time previously been placed in administrative receivership. The defendants contended that the appointment of the administrative receiver was invalid, and hence that the conditions of section 6 were not satisfied and the Secretary of State was not entitled to rely on the section as the basis for the disqualification proceedings. Mr Registrar Buckley ordered the trial of a preliminary issue as to whether the appointment of the administrative receiver was a valid appointment. At first instance, Sir John Knox held that it was. The defendants appealed. In this court Millett LJ, in the course of argument, took the point that neither the company nor the appointor was party to the proceedings. In the result, this court (Millett and Judge LJJ and Sir Christopher Staughton) allowed the defendants’ appeal but only to the extent of setting aside the judge’s order and the order for the trial of the preliminary issue. In the course of his judgment Millett LJ said this (at pp.600g-601b):

Judge LJ agreed with Millett LJ. Sir Christopher Staughton’s judgment includes the following (at p.602a-d):

Mr McDonnell submits that the sentence which I have placed in italics in the passage from the judgment of Millett LJ quoted above forms part of the ratio of the decision. As such, it is, he submits, authority for the proposition that in the instant case the claimants have no status to challenge the validity of the appointment of Mr Levy and Mr Berman, notwithstanding that CV and the LLP are joined as parties to the action.

Mr McDonnell accordingly submits that a member of the LLP (including a Designated Member) should only be allowed to challenge the validity of the appointment in the context of a derivative action (a course which, he submits, is in any event not available in the instant case).

Mr Girolami submits that the claim advanced by the claimants does not fall within the rule in Foss v. Harbottle, since the claimants are not purporting to advance a cause of action vested in the LLP. He submits, relying in particular on the letters from Mr Levy and Mr Berman dated 7 December 2003, that in their capacity as Designated Members the claimants are directly affected by the validity or otherwise of the appointment in that they have been called upon to comply with statutory requirements and they need to know whether they are obliged to do so.

As to Mr McDonnell’s reliance on Meadows, Mr Girolami submits that the instant case is one in which legal rights are contested, the central issue in the instant case being whether the Designated Members retain the legal right to manage the affairs of the LLP or whether that right is now vested in Mr Levy and Mr Berman. In any event, he submits, the law has moved on since Meadows was decided. In support of this submission he referred us to Zamir & Woolf’s The Declaratory Judgment 3^rd edn. at paras. 3.017-3.023 where the later authorities are summarised.

Mr Girolami relies in particular on the decision of this court In re S (Hospital patient: Court’s jurisdiction) [1996] Fam 1 (“Re S”) (in which Meadows does not appear to have been cited). In Re S a carer of Ssought a declaration that S’s wife and son were not entitled to remove him to Norway. In the course of his judgment in Re S Millett LJ, after quoting the passage from Lord Diplock’s speech in Gouriet which this court considered in Meadows, continued (at p.21H):

Later in his judgment, Millett LJ said this (at p.22):

Mr Girolami submits that the instant case is on all fours in these respects with Re S.

As to Jabble, Mr Girolami submits that the sentence in Millett LJ’s judgment which I placed in italics when quoting from his judgment (in paragraph 58 above) was strictly obiter, and in any event cannot be reconciled with his reasoning in Re S (which does not appear to have been cited in Jabble). He submits that in Jabble the court plainly dealt with the question of declaratory relief on the basis that it was a matter for the discretion of the court. He submits that in the instant case there is every reason for exercising the court’s discretion by granting the declaratory relief sought.

He also referred us to a passage in the judgment of Rimer J in Re Kaytech International plc[1999] 2 BCLC 351 (“Kaytech”). In Kaytech, the court was faced with a situation similar to that which arose in Jabble, in that a respondent to disqualification proceedings sought to challenge the validity of the liquidator’s appointment. Rimer J held that the proper course for the respondent would have been to apply for a stay of the disqualification proceedings to enable him to start separate proceedings challenging the liquidator’s status, in which all parties affected (including the liquidator and the company) were joined as parties. After referring to Jabble, Rimer J said this (at p.396a-d):

Mr Girolami submits that the sentence which I have placed in italics in the above passage is equally applicable in the instant case and provides direct support for his submissions.

As foreshadowed in the Respondent’s Notice, Mr Girolami submits in the alternative that the claimants’ interests as ordinary members of the LLP are sufficient to enable them to obtain declaratory relief. He emphasises the hybrid nature of a limited liability partnership, which has a separate legal persona, but which is nevertheless treated for tax purposes as if it were a partnership of individuals. He reminds us of the tax advantages which investment in the project was expected to produce, submitting that those expected tax advantages would be placed in jeopardy if the appointment of Mr Levy and Mr Berman was a valid appointment.

Mr McDonnell submits that, on the true construction of section 72E(2)(a), ‘the agreement’ is, in the instant case, the ICT Software Agreement. He submits that although the LLP was not, by that agreement, expected to incur an indebtedness of at least £50M, nevertheless the preposition ‘under’ has a broader meaning than ‘by’, and the judge fell into error in equating the two. He submits that the ICT Software Agreement represented the effective launch of a project in the course of which the LLP was, as at the date of that agreement, ‘expected to incur’ the requisite level of indebtedness ‘for the purposes of carrying out the project’. He points out that there was no need for Parliament to import a requirement that the borrowing should be contractual, since it inevitably is contractual. He submits that the evident intention behind the ‘expected to incur’ requirement is that the expected borrowing by the project company should be actually provided for in the agreement or one of the agreements relating to the project: i.e. that Parliament intended that project finance above the stated threshold must be an intrinsic part of the project and not merely something incidental, occasioned by the financial needs of one of the participants.

Turning to the factual issue as to whether the requisite expectation existed as at the date of the ICT Software Agreement (5 December 2003), Mr McDonnell submits that the terms of the ICT Software Agreement itself, coupled with the terms of the Information Memorandum, are determinative in this respect; and that there is accordingly no need for a trial on that issue.

Mr Girolami submits that, on the natural construction of section 72E(2)(a), ‘the agreement’ is the Facility Agreement, since the Facility Agreement is the agreement ‘under’ which the LLP’s indebtedness was incurred or expected to be incurred. He submits that the reference to an expected indebtedness of at least £50M is directed to just the kind of situation which obtained in the instant case, where the eventual amount of the LLP’s indebtedness under the Facility Agreement was unascertainable as at the date of that agreement: in other words, it is directed simply to the ultimate quantum of the indebtedness incurred ‘under’ such an agreement. Hence the relevant date for the ascertainment of the requisite expectation is, he submits, 16 March 2004.

As I indicated earlier, Mr Girolami concedes that if the appeal turns on the existence of the requisite intention as at the relevant date, that issue is not suitable for resolution under CPR Part 24 and would have to go to trial. In any event, he rejects Mr McDonell’s submission that if (contrary to his submissions) the relevant date for this purpose is 5 December 2003, the terms of the ICT Software Agreement and the Information Memorandum are determinative of that issue in favour of CV.

Mr McDonnell submits (as he submitted to the judge) that CV’s right to appoint administrative receivers under the power contained in clause 10 of the Debenture itself constitutes ‘step-in rights’ within the meaning of paragraph 6 of Schedule2A. He seeks to meet the point made by the judge in paragraph 47 of his judgment (quoted in paragraph 46 above) that if that were so there would appear to be no purpose in requiring that the project should include ‘step-in rights’ by referring to the meaning of ‘project company’ as set out in paragraph 7 of the schedule. Concentrating on the words ‘for carrying out all or part of the project’ in paragraph 6(1), he submits that not every appointment of an administrative receiver of a ‘project company’ can be said to be made for that purpose. In this respect, he seeks to draw a distinction between, on the one hand, a company which merely holds property for the purposes of the project (see paragraph 7(1)(a)) or which supplies finance for it (ibid. subpara (d)) or which is merely the holding company of another project company (ibid. subpara (e)), and on the other hand a company which plays a direct and active part in the carrying out of the project (as in ibid. subparas (b) and (c)).

In support of his submission that a right to appoint an administrative receiver constitutes ‘step-in rights’ Mr McDonnell referred us to two textbooks on the subject of project finance: Project Finance, Subordinated Debt and State Loans by Philip Wood (1995) and Project Finance: A Legal Guide by Graham Vinter (2^nd edn. 1998). Both textbooks were written before the enactment of the 2002 Act. In chapter 5 of his book, Mr Wood addresses the question of project security, noting that one of the purposes of project security is to confer control of the project on the lending banks in the event of a default, and that complete control is only possible if a comprehensive floating charge is available. Later in the chapter (in paragraph 5-6) he refers to what he describes as ‘direct agreements’ between the project contractors and the lending banks, whereby in the event of default by the project company the lending banks ‘step-in’ to perform the project company’s payment obligations. Mr Vinter, in his book, also refers to such ‘direct agreements’. In part 6.4 of his book he states the objective of such agreements as being to enable banks to ‘step into the shoes’ of the project company if it defaults on its loan obligations. He goes on to say that banks would usually expect a direct agreement relating to a commercial contract to include an agreement by the third party (e.g. the project contractor) to allow the banks – or a receiver or similar agent appointed by them – to assume the project company’s rights and obligations for a specified period of time or to allow the transfer of the contract to a separate company established by the banks for that purpose.

Mr McDonnell submits that the above references to ‘direct agreements’ are of assistance in ascertaining the intended meaning of the expression ‘step-in rights’ in section 72E and in construing paragraph 6 of Schedule 2A. He submits that the draftsman of section 72E must be taken to have known that the expression ‘step-in rights’ was generally understood to refer to various types of agreements giving security including, in England, the appointment of administrative receivers under a floating charge.

Mr Girolami points out that section 72E contains an exception to the general exclusionary rule in section 72A, and accordingly is to be given, if anything, a restrictive interpretation. He points out that each of the three exceptions to the general exclusionary rule which relate to projects (viz. those contained in section 72C, section 72D and section 72E) require that the project includes ‘step-in rights’. This, he submits, is the clearest indication that the expression was intended to mean something more than a mere power to appoint an administrative receiver. Had that been the intention, he submits, it is hard to see why Parliament should have considered it necessary to impose the additional requirement of the existence of ‘step-in rights’. He accordingly supports the point made by the judge in paragraph 47 of his judgment.

Mr Girolami (wisely, if I may say so) did not essay a comprehensive definition of ‘step-in rights’: rather, he contented himself with the submission that they are plainly to be distinguished from a mere power to appoint administrative receivers, which is the only power relied on by CV in the instant case.

Let me start by disposing of the suggestion that the rule in Foss v. Harbottle applies to the claim made in the instant case, with the consequence that the only proper claimant is the LLP itself. In the instant case, the claimants are not prosecuting a cause of action which is vested in LLP. They are not seeking to obtain relief in respect of an injury suffered by the LLP: rather, they are concerned to know whether, in their personal capacities as Designated Members, they are obliged by statute to comply with the requests made by Mr Levy and Mr Berman. Even on the alternative case put by Mr Girolami (pursuant to the Respondent’s Notice) based upon the claimants’ capacity as ordinary members of the LLP, the injury of which they seek to complain in that capacity is not an injury to the LLP but an injury to them personally by reason of the tax consequences to them should the appointment be valid. Accordingly, no question arises of a derivative action (as explained by this court in Newman at pp.210D-211B).

I turn, then, to the passage quoted earlier from the speech of Lord Diplock in Gouriet. In my judgment the instant case falls within the principles stated by Lord Diplock in that passage, as interpreted by this court in Meadows. In the instant case there is a contest between Mr Levy and Mr Berman on the one hand and the claimants on the other as to the legal (statutory) right of the former to require the latter to comply with the demands made in the letters dated 7 December 2003. Nor, in my judgment, should declaratory relief be refused on the footing that the claimants are seeking declaratory relief as to the effect of a contract to which they are not parties. The power in clause 10 of the Debenture is more than a mere contractual power: it has important statutory consequences outside the contract (see Part III of the 1986 Act). Accordingly the instant case is, in my judgment, one where the claimants, as Designated Members, are not merely directly interested in the issue as to the validity of the appointment, but directly affected by it.

Were it necessary to do so, I would in any event have held, on the authority of Re S, that things have indeed moved on since Meadows was decided; and that the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet.

As to Millett LJ’s dictum in Jabble on which Mr McDonnell relies (viz. his statement that the appellant directors in that case “never had any standing to challenge the appointment even in proceedings properly constituted against the bank”), I accept Mr Girolami’s submission that the dictum was strictly obiter. Moreover, I consider that Rimer J in Kaytech was fully justified in not being convinced by it. For my part, I cannot accept that the appellant directors in Jabble could not have challenged the appointment in properly constituted proceedings (i.e. in proceedings to which the company and the debenture-holder were joined as parties). Millett LJ’s own judgment in Re S, as I read it, clearly establishes that they could have done so.

I accordingly conclude that the judge reached the right conclusion on the status issue.

In the circumstances, it is unnecessary for me to address Mr Girolami’s alternative submission based on the claimants’ capacity as ordinary members of the LLP.

As a matter of the construction of section 72E(2)(a) the quest, in my judgment, is for an agreement ‘under’ which – i.e. by virtue of which – a project company either (a) ‘incurs’ – i.e. assumes an obligation to pay – a debt of at least £50M for the purposes of carrying out the project, or (b) at the date when that agreement is entered into is ‘expected to incur’ such a debt. The difficulty arises in relation to the words ‘expected to incur’. In context, I consider that ‘expected to incur’ relates merely to the anticipated (expected) quantum of the obligation which is assumed by the project company ‘under’ the relevant agreement. In other words, section 72E(2)(a) is addressing a situation in which the precise amount of the debt incurred ‘under’ the agreement is not ascertainable as at the date of that agreement (e.g. a situation in which, as in the instant case, the project company enters into a facility agreement with a bank where the precise amount of the drawdown within the permitted limit is dependent on future contingencies). On my reading of section 72E(2)(a) the draftsman could have put it better by saying: “… incurs a debt which either (a) amounts to at least £50M or (b) as at the date when the agreement is entered into is expected to amount to at least £50M …”.

On that construction, it follows that it was ‘under’ the Facility Agreement that the LLP was or (as the case may be) was not ‘expected to incur’ an indebtedness above the specified threshold, and accordingly that the judge was right to conclude (in paragraph 40 of his judgment) that the relevant agreement in the instant case was not the ICT Software Agreement but the Facility Agreement, and hence that the relevant date for assessing whether the requisite expectation existed was 16 March 2004. In this connection I should note that although at one stage in the course of argument Mr McDonnell flirted with the idea that the LLP incurred a debt of at least £50M under the terms of the ICT Software Agreement itself, in the event he did not make that submission.

Mr McDonnell’s suggested distinction between ‘under’ an agreement and ‘by’ an agreement seems to me to be a highly artificial and awkward one. Although I would certainly not give the draftsman of section 72E(2)(a) high marks for draftsmanship, I am reasonably confident that had he intended to draw that somewhat esoteric distinction he would have done so in very much clearer terms.

As to the meaning of ‘expected’, both sides are agreed (see paragraph 41 of the judge’s judgment) that whatever the precise test to be applied in assessing the existence or otherwise of the requisite expectation, that test must involve as great a degree of objectivity as is possible. Given Mr Girolami’s concession that, if the appeal were to turn on this issue, there would have to be a trial, it would in any event be unwise to attempt to be any more specific as to the appropriate test beyond rejecting Mr McDonnell’s submission that the terms of the ICT Software Agreement itself, coupled with the Information Memorandum, are (without more) determinative of the issue in CV’s favour. In my judgment that last submission borders on the fanciful. As the judge rightly pointed out in paragraph 45 of his judgment, “up to” is not the same as “at least”.

Mr McDonnell’s reliance on textbooks as affording guidance as to the meaning of the statutory expression ‘step-in rights’ seems to me to be wholly misplaced, given (a) that both the textbooks on which he relies were written before the enactment of the 2002 Act, and (b) that Parliament has chosen to include a definition of ‘step-in rights’ in paragraph 6 of Schedule 2A.

For better or worse, therefore, the quest to find the intended meaning of the expression ‘step-in rights’ must in my judgment be focused exclusively on the 1986 Act itself, and in particular on paragraph 6 of Schedule 2A.

If the draftsman did not score highly for his drafting of section 72E(2)(a), he seems to me to have been even less successful in his attempt to define the expression ‘step-in rights’ in paragraph 6 of Schedule 2A.

However, some general propositions as to the meaning and scope of paragraph 6 can, I think, be stated with some degree of confidence. Firstly, for whatever reason (and we were told that researches into Hansard have failed to provide enlightenment in this respect) Parliament manifestly intended that, in order to qualify as an exception from the general prohibition on the appointment of administrative receivers contained in section 72A, a ‘project’ must include ‘step-in rights’. The inclusion of ‘step-in rights’ is, in other words, a requisite characteristic of a project if it is to fall within one of the relevant exceptions. Secondly, there is nothing in paragraph 6 to suggest that the agreement under which the ‘person who provides finance in connection with the project’ (“the financier”) has the relevant rights must be the same agreement as that under which the appointment of administrative receivers is made. Thirdly, given that there may be several project companies connected with the same project (i.e. companies falling within the definition in paragraph 7 of the schedule), the agreement under which the financier has the relevant rights may, it would seem, be an agreement with a different project company from the project company in respect of which the appointment of administrative receivers is made. Fourthly, it would seem that more than one financier may have the relevant rights over the same project. Other permutations are no doubt possible.

In the circumstances, I propose to adopt the same approach as Mr Girolami and to eschew any attempt at a comprehensive or exhaustive description of the kind of rights which may fall within the definition of ‘step-in-rights’.

I turn, then, to Mr McDonnell’s central submission that a power to appoint administrative receivers itself constitutes ‘step-in rights’ (I frame the question in general terms since there is nothing out of the ordinary about the power to appoint administrative receivers contained in clause 10 of the Debenture).

In my judgment it is inconceivable that in enacting the relevant provisions of the 2002 Act Parliament intended to equate a power for a financier to appoint an administrative receiver with ‘step-in rights’. As the judge rightly observed in paragraph 47 of his judgment, had that been the case the inclusion of the requirement for ‘step-in rights’ would have been superfluous. In this connection I reject Mr McDonnell’s submission based on the words ‘for carrying out all or part of the project’ and the definition of ‘project company’ in paragraph 7 of Schedule 2A. I can accept that a project company whose only function is, for example, to hold property for the purpose of the project might not aptly be described as ‘carrying out all or part of the project’ (although I consider that the point is arguable), but there is nothing in paragraph 6 to suggest that Parliament intended to draw any relevant distinction between different categories of project company. So, ingenious though the argument is, I have no hesitation in rejecting it.

Accordingly I agree with the judge that the project in the instant case does not include ‘step-in rights’, and that it accordingly does not fall within the exception in section 72E. Since no other exception is now relied on, it follows that the general prohibition in section 72A applies, and that the appointment of Mr Levy and Mr Berman as administrative receivers of the LLP was invalid.

I would dismiss this appeal.

I agree.

I also agree.