BTI 2014 LLC v Sequana S.A. Antoine & Ors

On 11 July 2016, Rose J. handed down judgment in two claims, BTI 2014 LLC v. Sequana S.A.; and B.A.T. Industries plc v. Sequana S.A. ([2016] EWHC 1686). The first claim, brought by BTI 2014 LLC, failed in its entirety and was dismissed. The second claim, brought by B.A.T. Industries plc (“BAT”) was partially successful against Sequana S.A. (“Sequana”).

As a result of this partial success, a “consequentials hearing” was necessary. This hearing took place on 13 and 16 January 2017, and resulted in a “Judgment on Remedies”, which was circulated to the parties in draft on 30 January 2017 and handed down in final form on 10 February 2017 ([2017] EWHC 211). Between the date of circulation of judgment in draft and the handing down of judgment in final form, there was another hearing before Rose J., on 3 February 2017.

One of the matters dealt with by Rose J. in the Judgment on Remedies was the question of whether a stay of execution should be granted. The Judgment on Remedies at [99] to [110] reads as follows:

“(4)

Stay of Execution

"99.

Sequana have applied for stays of execution in relation both to the section 423 remedy and in relation to any immediate order as to costs, pending the determination of its appeal. This is on the basis that there is a very real risk that Sequana will be precluded from pursuing any appeal if ordered to make a significant payment to BAT prior to the appeal.

“100.

The granting of permission to appeal is not normally a sufficient reason to grant a stay of any remedy: the successful litigant should not generally be deprived of the fruits of litigation pending appeal: see Leicester Circuits Ltd v. Coates Brothers plc [2002] EWCA Civ 474 where Potter L.J. said that the normal rule is for no stay, but where the justice of that approach is in doubt, the answer may well depend on the perceived strength of the appeal. Both parties agreed that the relevant test is that set out in Hammond Suddards Solicitors v. Agrichem International Holdings Ltd [2001] EWCA Civ 2065, where Clarke L.J. described the correct approach as follows:

“Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or both parties if it grants or refuses a stay. In particular, if a stay is refused, what are the risks of an appeal being stifled? If a stay is granted, and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?”

101.

Sequana say that there is a risk of their appeal being stifled and of irreparable prejudice to Sequana, its employees and other creditors because of its precarious financial position. The evidence on this point was set out in Mr. Nicholas’ sixth witness statement. The position is that Sequana’s total cash at present is about €4 million. The company is owned 20 per cent by the Impala group which is a diversified French company, 15.42 per cent by the investment arm of the French State and the remainder by individual and institutional investors, Sequana being a quoted company on the Paris stock exchange. It has two wholly owned subsidiaries, Antalis International and Arjowiggins, both of which are operating paper manufacturers and distributors. Sequana is dependent on receipts of money from Antalis in the form of dividend payments and management fees.

102.

In 2014, the Sequana group underwent a significant, court-sanctioned financial restructuring following a long period of negotiation with its lenders and main shareholders. A very large amount of debt was written off with some of the remaining debt converted into bonds. Antalis’ credit facility was extended to the end of 2018 and in return Antalis was required to enter into various factoring arrangements so that the proceeds could be paid to senior lenders. Sequana’s shareholders participated in a rights issue to raise additional capital and suffered a significant dilution of their shareholdings. The restructuring left Antalis with a large syndicated credit facility with eight banks. A large proportion of this has already been drawn down. The terms of the credit facilities restrict the amounts that Antalis is permitted to distribute to Sequana as dividend. The caps are, Mr. Nicholas says, calibrated to reflect the banks’ assessment of Sequana’s actual operating expenses requirements at the holding company level. If Antalis exceeds those levels without the banks’ agreement that would be an event of default entitling the lenders to terminate the facilities.

103.

Arjowiggins is not subject to covenants restricting the payment of dividends. But it does not have enough money to make any such payments and is currently cash constrained. Mr. Nicholas concludes that should Sequana be ordered to pay to BAT or into court a significant amount and that amount is perceived by the credit insurance market to be unaffordable, this could create a liquidity squeeze through a cash run from suppliers, a reduction in payment periods and/or a downgrade by credit insurers.

104.

Despite this detailed evidence, BAT describe Sequana as having been “remarkably coy” about its finances. They submit that although Mr. Nicholas’ evidence “is suggestive of doom and gloom” it is entirely generic and uninformative. BAT point to the fact that Sequana has been able to finance the very considerable costs of defending these proceedings during the course of 2016, including the costs of the Consequentials Hearing itself. Sequana also contemplates funding its appeal over the coming year. BAT focuses on Sequana’s failure to adduce evidence as to efforts to raise money from its directors, shareholders, other backers or interested parties. The Sequana evidence goes no further than to say that in the opinion of the Sequana management there is no possibility of a renegotiation with lenders or of a rights issue. Mr. Lloyd also gives evidence that in early November 2016, in response to the evidence of Sequana on this point, Debevoise & Plimpton wrote to Freshfields asking whether Sequana was capable of making any payment ordered by the court and if so how much. The reply was simply to refer back to Mr. Nicholas’ evidence and refrain from naming a sum. BAT correctly point out that if Sequana pays over the sums due under the section 423 Claim but are successful in their appeal, there is no doubt that BAT would be in a position to refund the money to Sequana since BAT is a very substantial company.

105.

In my judgment this is a case where the justice of the case demands a stay of execution of the section 423 remedy pending the resolution of Sequana’s appeal against the finding of liability in respect of the May Dividend. I have reached that conclusion for the following reasons.

106.

First, Sequana's appeal largely turns on two legal points which may well turn out to be right. These are:

a.

my decision explained in paragraphs 497 onwards of the Main Judgment that a dividend is capable of being a transaction falling within section 423(1)(a) or (c); and

b.

more generally, the relationship between the protection conferred on creditors by section 423 and the protection conferred on creditors by the provisions in Part 23 of the CA 2006 and by the triggering of the creditors’ interests duty contemplated by section 172(3) of that Act: see paragraph 501 of the Main Judgment.

107.

These are not easy points and there is no authority discussing how these complicated sets of provisions are meant to work together. If Sequana succeeds on either of these points, its liability under section 423 may be overturned.

108.

Secondly, I have no doubt on the basis of Mr. Nicholas’ evidence that Sequana is in a difficult financial position and that it may well not survive the requirement of a substantial lump sum payment of the size that would result from the immediate enforcement of the section 423 remedy that I have held should be made. There is a real risk therefore that any appeal will be stifled. I do not accept BAT’s criticisms of the evidence put forward by Sequana. As Mr. Foxton pointed out, there has recently been a court approved restructuring in which the lenders and shareholders agreed to very significant erosions of their rights. There must be a very real risk that nothing more can be squeezed out of them now.

109.

Finally, I realise that Sequana’s financial difficulties are also relevant to the second stage of the test propounded by Clarke L.J. in Hammond Suddards. If Sequana’s and its subsidiaries’ fortunes continue to decline, this may make it less likely that BAT would be able to recover anything from Sequana if Sequana’s appeal ultimately fails but it has slid further into difficulty. Sequana might be in a stronger position to pay something now if BAT is allowed to enforce the order than in a year or so. However, BAT is a substantial company which can bear the expenses it has agreed to incur for the Lower Fox River clean up. The terms of the Funding Agreement show that BAT has recognised that it may have to wait a long time before the final reckoning of what it is entitled to recover from whom can be made and that it will have to suffer being out of funds until that point.

110.

I therefore grant a stay of execution in respect of the section 423 order. The stay should not apply to the part of the order that requires the provision of information to Sequana about the progress of the US litigation: see paragraph 82 above.”

The order, consequential upon the Judgment on Remedies, is dated 10 February 2017, but was sealed on 1 March 2017. Paragraphs 2.1 to 2.3 of the order provide for various payments to be made by Sequana to BAT. It is unnecessary to set out these paragraphs in full. However, it must be noted that the sums Sequana was obliged to pay pursuant to these paragraphs are large. Thus, paragraph 2.1 of the order refers to a “Lump Sum” in an amount of US$138.4 million.

Paragraph 2.6 of the order provides for a stay. What it says is this:

“Paragraphs 2.1-2.3 of this order are stayed pending the determination of Sequana’s appeal to the Court of Appeal pursuant to the permission granted in paragraph 5 of this order.”

Paragraph 5 of the order grants both parties permission to appeal various other provisions in the order. The terms of this permission are not relevant for present purposes. It is sufficient to note that permission to appeal was given to both parties and in particular to Sequana.

As I have noted, the Judgment on Remedies was handed down on 10 February 2017, which was a Friday. On Monday, 13 February 2017, Sequana applied to the Eighth Chamber of the Tribunal de Commerce de Nanterre in France for an order that a “sauvegarde proceeding” be opened for Sequana.

That order was granted by the Tribunal on 15 February 2017.

Obviously, the precise nature of the sauvegarde proceeding is a matter of French law and practice. It is a form of pre-insolvency process, and is one that is recognised outside France under the 2000 and 2015 EU Insolvency Regulations (EC Regulation on Insolvency Proceedings No. 1346/2000; and EC Regulation on Insolvency Proceedings No. 848/2015).

In very broad terms, the sauvegarde proceeding has the following characteristics:

By an application dated 17 May 2017, BAT applies under CPR Part 3.1(7) to revoke paragraph 2(6) of the order of Rose J. so that the stay imposed by that paragraph is lifted.

Three grounds for this application are advanced:

It was suggested by Sequana that because the order was dated 10 February 2017 and the sauvegarde proceeding was ordered on 15 February 2017, this application could, and should, have been made sooner. I reject that contention. It was necessary for BAT to obtain translations of the relevant legal documents, and to assess its position. I do not consider that BAT can be accused of delay in bringing this application before the court.

CPR Part 3.1(7) provides that “[a] power of the court under these Rules to make an order includes a power to vary or revoke the order.”

This provision was considered by the Court of Appeal in Tibbles v. SIG plc [2012] EWCA Civ 518 at [39] (per Rix L.J.). This paragraph provides a helpful codification of the jurisprudence in this area:

“In my judgment, this jurisprudence permits the following conclusions to be drawn:

(i)

Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.

(ii)

The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

(iii)

It would be dangerous to treat the statement of these primary circumstances, originating with Patten J. and approved in this court, as though it were a statute. That is not how jurisprudence operates, especially where there is a warning against the attempt at exhaustive definition.

(iv)

Thus there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.

(v)

Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where the decision not to mention them is conscious or deliberate.

(vi)

Edwards v. Golding is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order. It was plain in that case from the master’s judgment itself that he was seeking a disposition which would preserve the limitation point for future debate, but he did not realise that the form which his order took would not permit the realisation of his adjudicated and manifest intention.

(vii)

The cases considered above suggest that the successful invocation of the rule is rare. Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of a court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.”

I approach BAT’s application in the following way. First, I must determine whether this is a case falling within CPR Part 3.1(7), entitling me to reconsider at all the order of Rose J. Obviously, absent an appeal or the application of CPR Part 3.1(7), the order of Rose J. must stand.

Only if I conclude that this is an exceptional case, or perhaps one out of the ordinary, falling within CPR Part 3.1(7), can I consider whether the order should be varied or revoked.

I turn, then, to Stage 1: the power to revoke or vary.

In Tibbles at [39](ii), two paradigm cases where the CPR Part 3.1(7) jurisdiction can be exercised are identified. They are:

Generally speaking, these cases are going to be mutually exclusive. Either an existing fact or circumstance was misstated (or perhaps not disclosed) at the time the order was made; or there has been a material change of circumstance since the order was made.

In this case, BAT relied upon four matters to trigger the CPR Part 3.1(7) jurisdiction. They are set out in paragraph 12 of BAT’s written submissions. Paragraph 12 reads as follows:

“However, at no time prior to the grant of the Stay of Execution did Sequana disclose to the Court the following material matters:

12.1.

It was about to enter into sauvegarde proceedings in France, the effect of which would be to give rise to a moratorium on the enforcement of claims in any event.

12.2.

The purpose or effect of the proposed stay of execution was at least, in part, to facilitate Sequana’s entry into sauvegarde proceedings.

12.3.

Once it had secured the Stay of Execution, it was Sequana’s plan to make the Antalis Distribution. The value of the shares to be distributed to Sequana’s shareholders is estimated to be up to €100 million.

12.4.

On 7 November 2016, Sequana had entered into two loan agreements totalling €25 million with its two largest shareholders (BPI and Impala Group). It has since raised a further €10 million from BPI and one of BPI's associated companies.”

Of these four matters, I discount the last three (i.e. those set out in paragraphs 12.2 to 12.4 of BAT’s written submissions). My reasons for doing so are as follow:

That leaves the first matter relied upon by BAT in paragraph 12.1. Here, there are two alternatives:

I find the fact that the application by Sequana for the sauvegarde proceeding to be opened in its favour was made so shortly after the order granting the stay to be troubling. The stay was ordered by Rose J. on Friday 10 February 2017; the Tribunal was applied to on the following Monday, 13 February (i.e. the following working day). Whilst it may be, as Sequana contend, that a final decision to apply to open the sauvegarde proceeding was only made on the date it was applied for, 13 February 2017, that option must have been under contemplation some time before 13 February 2017. It seems unlikely that the sauvegarde proceeding was not even in contemplation at the hearings before Rose J. on 13 and 16 January 2017 and 3 February 2017. It also seems unlikely that Sequana could have failed to understand or appreciate the significance of the automatic moratorium triggered by the sauvegarde proceeding in the context of an application for a stay of execution, which application was expressly predicated on the basis that absent a stay, Sequana’s appeal might be stifled. The significance of the moratorium in that context is obvious.

Nevertheless, that is, in essence, what I have been told in the evidence adduced on behalf of Sequana. Rather than go behind that evidence, something that is in any event difficult, particularly given the urgency of this application, I prefer to proceed on the basis that the application by Sequana to open the sauvegarde proceeding and the success of that application before the Tribunal constitute subsequent changes of circumstance. I proceed on that basis.

In my judgment, this subsequent change of circumstances is of the utmost materiality. Rose J. reached the express conclusion at [108] that unless a stay was granted, there was a real risk that any appeal by Sequana would be stifled. That risk now only exists in a most attenuated way. In the first place, for a minimum of six months and a maximum of 18 months, Sequana has the benefit of an automatic moratorium arising out of the sauvegarde proceeding. That moratorium can be translated into a stay in England and Wales by having the sauvegarde proceeding recognised in England and Wales. Although that entails an application, the process is administrative and not judicial.

Secondly, assuming the plan de sauvegarde is approved, creditors of Sequana will be obliged to accept the repayment schedule set out in that plan.

In short, Sequana’s successful invocation of French insolvency procedures, resulting in an immediate and automatic moratorium and potentially leading to a plan de sauvegard binding on creditors, is a matter going to the heart of the question before Rose J., namely, whether a stay should be granted. This is precisely the sort of exceptional, or perhaps out of the ordinary, case that CPR Part 3.1(7) exists to deal with.

It is, to my mind, irrelevant whether, on consideration of this additional factor, the order originally made would have stood, been varied or been revoked. That is not the correct question. The correct question is whether the subsequent change of circumstance is material; not whether, assuming that the subsequent change had been known to the court originally making the order, the order would have been any different.

Accordingly, I consider that I do have jurisdiction under CPR Part 3.1(7) to vary or revoke the order of Rose J.

I refer to the analysis of Rose J. in the Judgment on Remedies at [99] to [110], which is set out earlier in this ruling. The authorities referred to by Rose J. were cited to me on this application. I adopt Rose J.’s analysis of the law. Equally, as regards Rose J.’s assessment of Sequana’s financial position and her assessment of the prospects of the appeal from her judgment (for which she gave permission), I have nothing to add. Again, I adopt her analysis.

However, I must consider anew the granting of a stay of execution in light of the changed circumstances that I find to exist. It is necessary for me to consider a number of questions.

First, if a stay is refused, what are the risks of an appeal being stifled? The answer, plainly, is that there is no risk at all. The effect of the sauvegarde proceeding, on which Sequana has successfully embarked, is to impose an automatic moratorium.

Secondly, were I to grant a stay, but were Sequana’s appeal ultimately to fail, is there a risk that BAT will be prejudiced in enforcing the judgment it has obtained? I consider this to be a neutral factor for the same reason. The effect of the sauvegarde proceeding on BAT’s ability to recover the debt it is owed, assuming the judgment of Rose J. is upheld, is a matter for the future and inherently unknown. But, plainly, the intent is for the sauvegard proceeding to result in a plan de sauvegard.It seems to me that I must proceed on the basis that the French courts will, just as the English courts would, seek to ensure due protection for the creditors of the company applying for pre-insolvency protection and that the plan de sauvegard will be appropriately monitored. In any event – and this is why the factor is a neutral one – an English stay is entirely irrelevant to this French insolvency (or pre-insolvency) process.

Thirdly, is there any other prejudice to BAT that I ought to take into account? Before me, BAT suggested that the very existence of the stay prejudiced it, both in the context of the sauvegarde proceeding and the Antalis Distribution. It is, for the reasons that I have given, extremely difficult to determine, on the evidence before me, how far the lifting of the stay might affect the judicial process in France. Sequana, on the other hand, invited me to hold that the stay would have, as a matter of French law and practice, no effect.

The French legal system is a mature and sophisticated one. I should not even try to second-guess its processes. I consider that I should proceed on the basis that the question before me is whether, disregarding for these purposes the detail of the insolvency processes going on in France, the stay should, or should not, be granted as a matter of English law. It will then be for the French courts, taking what account they consider to be appropriate of the existence or otherwise of a stay, to determine their course. Beyond that, as a matter of comity, I should not go.

This, as it seems to me, is a strong pointer in favour of revoking the order granting a stay. Applying the English law balancing exercise, the stay achieves nothing. It should, therefore, go. If (and I make no finding in this regard) the existence of the stay might have the effect of distorting the French pre-insolvency processes, then that simply strengthens the reason why the stay should be lifted.

Fourthly, are there any other grounds on which a stay should be granted? Before me, Sequana contended that if the sauvegarde proceeding ended without the adoption of a plan desauvegarde, Sequana would be prejudiced unless it had the benefit of a stay of execution in England. That prejudice, so it was said, would manifest itself in two ways:

I reject this submission. As the authorities show, the granting of a stay is an exceptional circumstance and not the norm. What I am being asked to do by Sequana is to grant a stay, or more precisely not to revoke the stay granted by Rose J, on entirely different grounds to the basis on which the stay was originally granted. As I have noted, Rose J. granted the stay because of the risk of an appeal being stifled.

I have been invited not to revoke the stay on altogether different grounds. Whilst I consider that I have jurisdiction to do, I decline to exercise that jurisdiction. So far as the commercially deleterious consequences to Sequana are concerned, I should make clear two points.

I say this expressly in the confident anticipation that this judgment (which, in the first instance, I am giving in private) will, in due course, be made public. No one then, reading this judgment, can or should read anything more into my decision to lift the stay than what is said in paragraph 40 above. That, I consider, should be sufficient to eliminate any commercially deleterious adverse consequences. If it is not, then the fact of these consequences is not enough to persuade me that an otherwise pointless stay should remain in effect.

The second prejudice contended for by Sequana arises if the sauvegard proceeding should fail, which I interpret to mean were the sauvegard proceedings to end without the adoption of a plan de sauvegard.In such a case, Sequana contends that there would be a risk of Sequana being exposed to some other insolvency proceeding in France, unless the English stay were in place. As to this, I do not consider that it would be appropriate to order a stay of execution on the basis of the uncertain contingency that the sauvegarde proceeding fails. The fact is that the purpose of the stay is not, and never was, to enable Sequana to avoid French insolvency proceedings. The purpose of the stay was to enable an appeal to be brought, and not be stifled. That purpose, as I have said, has now vanished.

Of course, as BAT accepted, Sequana is at liberty to apply to seek a stay in the future were the sauvegarde process to fail. I consider that this liberty should be expressed in the order that I make. However, that does not mean that in anticipation of this uncertain outcome, I ought to impose a definite result. Whether, in the future, a stay ought to be granted is a matter that can only be considered in the light of the circumstances that pertain at the time when the stay is sought. It may, in the future, be appropriate to grant a fresh stay, for instance, to prevent Sequana's appeal from being stifled if (i) the sauvegard procedure failed and (ii) BAT’s sought, in that case, to enforce the debts due under paragraph 2 of Rose J.’s order.

It is, I suppose, conceivable that a stay might appropriately be granted in order to enable Sequana to stave-off French insolvency proceedings arising because of the failure of the sauvegard process, although I have to say I am doubtful. If all that stands between Sequana and a French insolvency process is an English stay of a debt, that stay granted for the purposes of ensuring that the appeal of an adverse English judgment was not stifled, then I can see strong reasons for ensuring that English processes do not interfere with the French insolvency processes by allowing the English stay to continue. Put another way, it does seem to me that if the sauvegarde process fails, then the reasons for that failure would be highly material to any question of a stay.

In my judgment, therefore, whilst Sequana should, in the circumstances, obviously not be precluded from applying for a stay in the future, the question of whether the stay should be granted is an entirely open question. It certainly should not be anticipated. I conclude that no stay should be granted in the present circumstances and that paragraph 2(6) of the order of Rose J. should be revoked.

There is, of course, the risk that were the sauvegarde proceedings to terminate without a plan de sauvegarde, Sequana might be faced with an immediate exposure to BAT’s judgment debt (which is the contingency discussed in paragraph 43 above). That is a process that would be initiated by BAT itself. In this regard (but only in this regard) I do consider that Sequana is entitled to a measure of protection, so as to give it time to enable it to apply for a stay in these circumstances, if so advised. That protection is being offered by BAT. BAT has offered an undertaking not to enforce its judgment debt within a reasonable period of time, say 28 days, from the date on which the sauvegarde proceedings end without the adoption of a plan de sauvegarde.

The question was raised before me as to whether such an undertaking would be recognised in France. That is an irrelevant factor. I am concerned here with the question of a stay in relation to an English order. Although I consider that BAT’s undertaking should extend to any enforcement proceedings in any jurisdiction, at the end of the day, what matters is that the undertaking is recognised in this jurisdiction, where the stay is being sought. Whether the undertaking is recognised by the French courts or not makes no difference to my decision.

I know that alternative forms of assurance from BAT were debated between the parties between the hearing of this matter on Wednesday evening (31 May 2017) and the handing down of this judgment on Friday morning (2 June 2017), including the possibility of a contingent stay coming into force for a limited period should the sauvegarde proceedings end without the adoption of a plan de sauvegarde. I am not attracted by this course, particularly since Sequana does not accept that this exercise resolves the problems it says result from the lifting of the stay.

There is one final point. During the course of the hearing, I expressed the concern that paragraph 2 of the order of Rose J. was silent as to the time for the performance of Sequana's obligations. At the time of the order, given the stay, this was, of course, an academic question and, given the pendency of the sauvegarde proceedings, it perhaps still is. Nevertheless, it seems to me that as a matter of principle it is not possible to stay an order that does not contain within it a time for its performance. I am persuaded that the absence of a specific date in the order means that CPR Part 40.11 applied and that Sequana’s obligations, save where a contrary date was provided (as in the case of costs) would be performable within 14 days of the order of Rose J.

I hold that this was the effect of the absent date in the order. However, because the point was not absolutely clear on the face of the order, and in order to avoid what might appear to be a retrospective date for performance of the order of Rose J., with the agreement of the parties I vary the date for the performance of the obligations in paragraph 2(1) of the order to 4pm on 16 June 2017.

I leave it to the parties to formulate the terms of an appropriate form of order (i) revoking the stay in paragraph 2.6 of the order of Rose J., (ii) incorporating a liberty to apply on the part of Sequana, (iii) including the undertaking given by BAT, and (iv) making clear the date under which Sequana’s obligations under paragraph 2 are performable.