Perpetual Trustee Company Ltd v BNY Corporate Trustee Services Ltd & Anor [2009] EWHC 2953 (Ch) (17 November 2009)

Perpetual Trustee Company Ltd v BNY Corporate Trustee Services Ltd & Anor [2009] EWHC 2953 (Ch) (17 November 2009)

The court held that a detailed letter as proposed by Perpetual would be inappropriate and potentially counter-productive at this stage, but that a more limited letter should be sent to the US Bankruptcy Court. The letter should explain the circumstances, confirm that only declaratory relief is sought in the US, note the English court's restraint, and respectfully invite the US court not to make orders requiring BNY to act regarding the collateral until further communication between the courts.

Citation
[2009] EWHC 2953 (Ch)
Parties
Claimant: Perpetual Trustee Company Limited; First Defendant: BNY Corporate Trustee Services Limited; Second Defendant: Lehman Brothers Special Financing Inc
Jurisdiction
England and Wales
Judgment Date
17 November 2009
Procedural Posture
Chancery Division Application / Application for Letter of Request to US Bankruptcy Court
Outcome
Application granted in part
Legal Topics
Cross Border Insolvency, Judicial Comity, Anti Deprivation Rule, Ipso Facto Principle, Declaratory Relief, Priority of Claims
Insolvency Conflict of Laws Trusts Cross Border Insolvency Judicial Comity Anti Deprivation Rule Ipso Facto Principle Declaratory Relief +1 more

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Parties

Perpetual Trustee Company Limited

Claimant

BNY Corporate Trustee Services Limited

First Defendant

Lehman Brothers Special Financing Inc

Second Defendant

Procedural Posture

Chancery Division Application / Application for Letter of Request to US Bankruptcy Court

Legal Issues

  1. 1 Whether the English court should send a letter of request to the US Bankruptcy Court regarding proceedings affecting the collateral held by BNY
  2. 2 Whether the relief sought in the US proceedings risks conflicting with English court orders
  3. 3 Whether the proposed letter would be appropriate in terms of comity and judicial cooperation

Ratio Decidendi

The court held that a detailed letter as proposed by Perpetual would be inappropriate and potentially counter-productive at this stage, but that a more limited letter should be sent to the US Bankruptcy Court. The letter should explain the circumstances, confirm that only declaratory relief is sought in the US, note the English court's restraint, and respectfully invite the US court not to make orders requiring BNY to act regarding the collateral until further communication between the courts.

Court Disposition

Application granted in part

Orders

  • A limited letter of request is to be sent to the US Bankruptcy Court as outlined by the judge, not in the detailed terms proposed by Perpetual.