The Claimants Listed In Schedule 1 To the Claim Form v Spence & Ors [2022] EWCA Civ 500 (28 April 2022)

The Claimants Listed In Schedule 1 To the Claim Form v Spence & Ors [2022] EWCA Civ 500 (28 April 2022)

The respondent failed to adduce evidence demonstrating a good arguable case that he would suffer loss as a result of the WFO; the risk of Coutts calling in the loan was speculative, and any loss was not capable of intelligent estimation. The proper measure of loss would have been the cost of replacing the hedge, for which no evidence was provided. The Judge was wrong to order increased fortification.

Citation
[2022] EWCA Civ 500
Parties
Claimants/appellants: The Claimants listed in Schedule 1 to the Claim Form; Defendant/respondent: Nicholas Spence; Defendant/respondent: Derek Kewley; Defendant/respondent: Andrew Crump; Defendant/respondent: Emerging Property Investments Limited (in Liquidation); Defendant/respondent: Emerging Property Limited; Defendant/respondent: Green Park Holdings (Ilfracombe) Limited; Defendant/respondent: GP Ilfracombe Management Company Limited; Defendant/respondent: Green Parks (Westward Ho!) Management Company Limited; Defendant/respondent: Alpha Properties (Bradford) Limited; Defendant/respondent: A1 Properties (Sunderland) Limited
Jurisdiction
England and Wales
Judgment Date
28 April 2022
Procedural Posture
Civil Appeal / Appeal From Order of Queen's Bench Division, Commercial Court
Outcome
Appeal allowed
Legal Topics
Freezing Orders, Undertaking in Damages, Fortification of Undertaking, Interlocutory Relief
Civil Procedure Commercial Law Freezing Orders Undertaking in Damages Fortification of Undertaking Interlocutory Relief

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Parties

The Claimants listed in Schedule 1 to the Claim Form

Claimants/appellants

Nicholas Spence

Defendant/respondent

Derek Kewley

Defendant/respondent

Andrew Crump

Defendant/respondent

Emerging Property Investments Limited (in Liquidation)

Defendant/respondent

Emerging Property Limited

Defendant/respondent

Green Park Holdings (Ilfracombe) Limited

Defendant/respondent

GP Ilfracombe Management Company Limited

Defendant/respondent

Green Parks (Westward Ho!) Management Company Limited

Defendant/respondent

Alpha Properties (Bradford) Limited

Defendant/respondent

A1 Properties (Sunderland) Limited

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From Order of Queen's Bench Division, Commercial Court

Legal Issues

  1. 1 Whether the respondent demonstrated a good arguable case of loss as a result of the worldwide freezing order (WFO)
  2. 2 Whether the evidence justified an increase in fortification of the undertaking in damages
  3. 3 Whether the risk of loss and its quantum were sufficiently established

Ratio Decidendi

The respondent failed to adduce evidence demonstrating a good arguable case that he would suffer loss as a result of the WFO; the risk of Coutts calling in the loan was speculative, and any loss was not capable of intelligent estimation. The proper measure of loss would have been the cost of replacing the hedge, for which no evidence was provided. The Judge was wrong to order increased fortification.

Court Disposition

Appeal allowed

Orders

  • Order for increased fortification set aside
  • No further fortification required from appellants