BAT Industries Plc v Windward Prospects Ltd [2013] EWHC 3612 (Comm) (21 November 2013)

BAT Industries Plc v Windward Prospects Ltd [2013] EWHC 3612 (Comm) (21 November 2013)

The court held that, absent an undertaking from Windward to issue protective proceedings, it is just and convenient to appoint receivers to protect the Dividend Claims from becoming time-barred. BAT has a good arguable claim for indemnity, the Dividend Claims have a real prospect of success, the quantum is substantial, and there is a real risk of loss if proceedings are not issued. The prejudice to Windward is minimal given its non-trading status and the limited scope of the receivers' role at this stage.

Citation
[2013] EWHC 3612 (Comm)
Parties
Claimant: BAT Industries PLC; Defendant: Windward Prospects Ltd
Jurisdiction
England and Wales
Judgment Date
21 November 2013
Procedural Posture
Application for Appointment of Receiver / Judgment on Application
Outcome
Application granted (conditional on absence of undertaking)
Legal Topics
Appointment of Receiver, Unlawful Dividends, Directors' Duties, Limitation Periods, Equitable Execution
Company Law Equity Civil Procedure Appointment of Receiver Unlawful Dividends Directors' Duties Limitation Periods Equitable Execution

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Parties

BAT Industries PLC

Claimant

Windward Prospects Ltd

Defendant

Procedural Posture

Application for Appointment of Receiver / Judgment on Application

Legal Issues

  1. 1 Whether a receiver should be appointed over Windward's claims against Sequana and former directors to protect potential assets from becoming time-barred
  2. 2 Whether the Dividend Claims have a real prospect of success
  3. 3 Whether there is a real risk of the claims becoming time-barred under French law

Ratio Decidendi

The court held that, absent an undertaking from Windward to issue protective proceedings, it is just and convenient to appoint receivers to protect the Dividend Claims from becoming time-barred. BAT has a good arguable claim for indemnity, the Dividend Claims have a real prospect of success, the quantum is substantial, and there is a real risk of loss if proceedings are not issued. The prejudice to Windward is minimal given its non-trading status and the limited scope of the receivers' role at this stage.

Court Disposition

Application granted (conditional on absence of undertaking)

Orders

  • Receivers to be appointed over Windward's claims against Sequana and former directors to commence proceedings to protect the limitation position.