Athena Capital Fund SICAV-FIS S.A v Crownmark Ltd

Athena Capital Fund SICAV-FIS S.A v Crownmark Ltd

The appeal was allowed because the evidence established that there was no genuine material change of circumstances: Gabi, the creditor, never intended to fund the ongoing conduct of the proceedings beyond the application to vary the unless order. The judge at first instance was misled as to the existence of ongoing funding, which was a necessary foundation for the exercise of discretion to extend time. Without such a material change, the extension should not have been granted.

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 Orders, Material Change of Circumstances, Litigation Funding, Liquidation
Civil Procedure Insolvency Extension of Time Unless Orders Material Change of Circumstances Litigation Funding Liquidation

Case Brief

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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 variation of an unless order under CPR 3.1(7)
  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 unless orders outside payment conditions

Ratio Decidendi

The appeal was allowed because the evidence established that there was no genuine material change of circumstances: Gabi, the creditor, never intended to fund the ongoing conduct of the proceedings beyond the application to vary the unless order. The judge at first instance was misled as to the existence of ongoing funding, which was a necessary foundation for the exercise of discretion to extend time. Without such a material change, the extension should not have been granted.

Court Disposition

Appeal allowed

Orders

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