Fortress Value Recovery Fund I LLP v Blue Skye Special Opportunites Fund LP & Ors

Fortress Value Recovery Fund I LLP v Blue Skye Special Opportunites Fund LP & Ors

The applications to strike out and for summary judgment are dismissed because the claimants have a real prospect of success at trial on all major issues, including the applicable law of tort, the scope of the Security Assignment, the reflective loss rule as applied to secured creditors, and the sustainability of s.423 Insolvency Act 1986 claims. Amendments to pleadings are allowed. The only exception is that the defendants are entitled to their costs of discontinued claims, to be assessed at the conclusion of proceedings.

Parties
Claimant: FORTRESS VALUE RECOVERY FUND I LLC; Claimant: ZBS CAPITAL PARTNERS L. P.; Claimant: CYPRESS WAY EUROPEAN ASSET INVESTORS II SÀRL; Defendant: BLUE SKYE SPECIAL OPPORTUNITIES FUND L. P.; Defendant: MR SALVATORE CERCHIONE; Defendant: MR GIANLUCA D’AVANZO; Defendant: STEPSTONE ACQUISITION SÀRL (IN BANKRUPTCY, REPRESENTED BY ITS OFFICIAL RECEIVER); Defendant: BLUE SKYE GP LTD; Defendant: DBZ SPECIAL INVESTMENT (LUX) SÀRL; Defendant: BENLOMOND CORPORATION SÀRL; Defendant: BLUE SKYE MANAGEMENT SÀRL; Defendant: BLUE SKYE CAPITAL SÀRL; Defendant: BLUE SKYE MANAGEMENT SÀRL SCS; Defendant: GREENTEA S. A.; Defendant: BLUE SKYE FINANCIAL HOLDINGS SÀRL; Defendant: OMEGA SKYE PARTNERS LIMITED; Defendant: OMEGA PARTNERS Sàrl; Defendant: MR MATTIA MIRKO DANESE; Defendant: MR FRANCESCO PAOLO PADULA; Defendant: MR GIOVANNI CASLINI; Defendant: MRS VALERIE EMOND; Defendant: MR GEOFFREY HENRY; Defendant: MR ALBERTO MORANDINI; Defendant: BSKYE INVESTORS Sàrl
Jurisdiction
England and Wales
Judgment Date
16 January 2013
Procedural Posture
Commercial Court Civil Claim and Part 20 Proceedings / Ruling on Applications to Strike Out, for Summary Judgment, and for Permission to Amend Pleadings
Outcome
Applications to strike out and for summary judgment dismissed; permission to amend pleadings granted; costs of discontinued claims awarded to defendants; status of Actio Pauliana claim reserved.
Legal Topics
Summary Judgment, Strike Out Applications, Assignment of Claims, Reflective Loss, Applicable Law of Tort, Insolvency Act 1986 S.423, Rome II Regulation, Costs of Discontinuance
Commercial Law Insolvency Law Conflict of Laws Summary Judgment Strike Out Applications Assignment of Claims Reflective Loss Applicable Law of Tort +3 more

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Parties

FORTRESS VALUE RECOVERY FUND I LLC

Claimant

ZBS CAPITAL PARTNERS L. P.

Claimant

CYPRESS WAY EUROPEAN ASSET INVESTORS II SÀRL

Claimant

BLUE SKYE SPECIAL OPPORTUNITIES FUND L. P.

Defendant

MR SALVATORE CERCHIONE

Defendant

MR GIANLUCA D’AVANZO

Defendant

STEPSTONE ACQUISITION SÀRL (IN BANKRUPTCY, REPRESENTED BY ITS OFFICIAL RECEIVER)

Defendant

BLUE SKYE GP LTD

Defendant

DBZ SPECIAL INVESTMENT (LUX) SÀRL

Defendant

BENLOMOND CORPORATION SÀRL

Defendant

BLUE SKYE MANAGEMENT SÀRL

Defendant

BLUE SKYE CAPITAL SÀRL

Defendant

BLUE SKYE MANAGEMENT SÀRL SCS

Defendant

GREENTEA S. A.

Defendant

BLUE SKYE FINANCIAL HOLDINGS SÀRL

Defendant

OMEGA SKYE PARTNERS LIMITED

Defendant

OMEGA PARTNERS Sàrl

Defendant

MR MATTIA MIRKO DANESE

Defendant

MR FRANCESCO PAOLO PADULA

Defendant

MR GIOVANNI CASLINI

Defendant

MRS VALERIE EMOND

Defendant

MR GEOFFREY HENRY

Defendant

MR ALBERTO MORANDINI

Defendant

BSKYE INVESTORS Sàrl

Defendant

Procedural Posture

Commercial Court Civil Claim and Part 20 Proceedings / Ruling on Applications to Strike Out, for Summary Judgment, and for Permission to Amend Pleadings

Legal Issues

  1. 1 Whether claims in tort should be struck out or determined summarily for want of a real prospect of success or applicable law
  2. 2 Whether claims for reflective loss by a secured creditor are sustainable
  3. 3 Whether certain claims fall within the scope of the Security Assignment

Ratio Decidendi

The applications to strike out and for summary judgment are dismissed because the claimants have a real prospect of success at trial on all major issues, including the applicable law of tort, the scope of the Security Assignment, the reflective loss rule as applied to secured creditors, and the sustainability of s.423 Insolvency Act 1986 claims. Amendments to pleadings are allowed. The only exception is that the defendants are entitled to their costs of discontinued claims, to be assessed at the conclusion of proceedings.

Court Disposition

Applications to strike out and for summary judgment dismissed; permission to amend pleadings granted; costs of discontinued claims awarded to defendants; status of Actio Pauliana claim reserved.

Orders

  • Applications to strike out and for summary judgment dismissed
  • Claimants granted permission to amend Particulars of Claim (except Actio Pauliana)