Sinclair Investment Holdings SA v Cushnie & Ors [2004] EWHC 218 (Ch) (12 February 2004)

Sinclair Investment Holdings SA v Cushnie & Ors [2004] EWHC 218 (Ch) (12 February 2004)

The evidence provided by Mr Cushnie was insufficient to demonstrate a real risk of loss warranting fortification of the cross-undertaking in damages. The application for security for costs was premature, made before the defence was filed, and appeared to be tactical; Sinclair's lack of assets and backing from FHC did not justify security at this stage without evidence of inability to raise funds from backers.

Citation
[2004] EWHC 218 (Ch)
Parties
Claimant: Sinclair Investment Holdings SA; First Defendant: Carlton Ellington Cushnie; Second Defendant: SCI Sacaleca; Third Defendant: Guillaume Leong-Son; Fourth Defendant: Marrlist Limited; Fifth Defendant: Assets International Management Limited; Sixth Defendant: Asset Nominees Limited
Jurisdiction
England and Wales
Judgment Date
12 February 2004
Procedural Posture
Chancery Division Civil Claim / Interlocutory Applications (fortification of Cross Undertaking and Security for Costs)
Outcome
Both applications refused
Legal Topics
Freezing Orders, Cross Undertaking in Damages, Security for Costs, Breach of Fiduciary Duty, Knowing Receipt, Knowing Assistance, Conspiracy, Asset Dissipation
Civil Procedure Trusts and Equity Company Law Freezing Orders Cross Undertaking in Damages Security for Costs Breach of Fiduciary Duty Knowing Receipt +3 more

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Parties

Sinclair Investment Holdings SA

Claimant

Carlton Ellington Cushnie

First Defendant

SCI Sacaleca

Second Defendant

Guillaume Leong-Son

Third Defendant

Marrlist Limited

Fourth Defendant

Assets International Management Limited

Fifth Defendant

Asset Nominees Limited

Sixth Defendant

Procedural Posture

Chancery Division Civil Claim / Interlocutory Applications (fortification of Cross Undertaking and Security for Costs)

Legal Issues

  1. 1 Whether fortification of the cross-undertaking in damages should be ordered
  2. 2 Whether security for costs should be ordered against the claimant

Ratio Decidendi

The evidence provided by Mr Cushnie was insufficient to demonstrate a real risk of loss warranting fortification of the cross-undertaking in damages. The application for security for costs was premature, made before the defence was filed, and appeared to be tactical; Sinclair's lack of assets and backing from FHC did not justify security at this stage without evidence of inability to raise funds from backers.

Court Disposition

Both applications refused

Orders

  • Application for fortification of cross-undertaking in damages refused
  • Application for security for costs refused