Athena Capital Fund SICAV-FIS S.A v Crownmark Ltd [2021] EWCA Civ 414 (23 March 2021)

Athena Capital Fund SICAV-FIS S.A v Crownmark Ltd [2021] EWCA Civ 414 (23 March 2021)

The appeal was allowed because the evidence demonstrated that there was no genuine material change of circumstances at the time of the order under appeal; the judge was misled into believing that ongoing funding was secured when, in fact, Gabi only intended to fund the application to extend time, not the ongoing defence. Without a material change, the extension of time should not have been granted.

Citation
[2021] EWCA Civ 414
Parties
Claimant/appellant: Athena Capital Fund SICAV-FIS S. C. A.; Defendant/respondent: Crownmark Limited
Jurisdiction
England and Wales
Judgment Date
23 March 2021
Procedural Posture
Civil Appeal / Appeal From High Court Judgment/order
Outcome
Appeal allowed
Legal Topics
Extension of Time, Unless Order, Disclosure, Material Change of Circumstances, Litigation Funding, Liquidation, Strike Out of Defence and Counterclaim
Civil Procedure Insolvency Commercial Law Extension of Time Unless Order Disclosure Material Change of Circumstances Litigation Funding +2 more

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Parties

Athena Capital Fund SICAV-FIS S. C. A.

Claimant/appellant

Crownmark Limited

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment/order

Legal Issues

  1. 1 Whether there was a material change of circumstances justifying extension of time for compliance with an unless order for disclosure
  2. 2 Whether the judge was misled as to the existence of ongoing litigation funding
  3. 3 Whether the principles in Goldtrail Travel Ltd v Onur Air Tasimacilik AS apply to the present case

Ratio Decidendi

The appeal was allowed because the evidence demonstrated that there was no genuine material change of circumstances at the time of the order under appeal; the judge was misled into believing that ongoing funding was secured when, in fact, Gabi only intended to fund the application to extend time, not the ongoing defence. Without a material change, the extension of time should not have been granted.

Court Disposition

Appeal allowed

Orders

  • Order of Jacobs J dated 7 August 2020 set aside
  • No extension of time for compliance with unless order granted