Centenary 6 Ltd v Caven & Anor [2017] ScotCS CSOH_95 (11 July 2017)

Centenary 6 Ltd v Caven & Anor [2017] ScotCS CSOH_95 (11 July 2017)

Neither the ATE insurance policy nor the deed of indemnity offered by the noter provided the clear, unqualified, and directly enforceable security required by rule 33.4 of the Rules of the Court of Session. The ATE policy was subject to insurer discretion, conditions, and was not directly enforceable by the respondents. The deed of indemnity was unsigned by all parties, conditional, and governed by English law, rendering it ineffective as a bond of caution. The noter's failure to provide suitable caution or any acceptable alternative justified refusal of the noter’s application and no further extension of time was warranted.

Citation
[2017] ScotCS CSOH_95
Parties
Noter: Centenary 6 Limited; Respondent: Robert Caven; Respondent: Kevin Mawer
Jurisdiction
Scotland
Judgment Date
11 July 2017
Procedural Posture
Application Under Section 212(3) of the Insolvency Act 1986 / Interlocutory Decision on Sufficiency of Security for Expenses
Outcome
Application refused; prayer of the note refused for failure to provide caution or suitable alternative.
Legal Topics
Security for Costs, Bond of Caution, After the Event (ate) Insurance, Deed of Indemnity, Court of Session Rules
Insolvency Civil Procedure Security for Costs Bond of Caution After the Event (ate) Insurance Deed of Indemnity Court of Session Rules

Case Brief

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Parties

Centenary 6 Limited

Noter

Robert Caven

Respondent

Kevin Mawer

Respondent

Procedural Posture

Application Under Section 212(3) of the Insolvency Act 1986 / Interlocutory Decision on Sufficiency of Security for Expenses

Legal Issues

  1. 1 Whether an ATE insurance policy constitutes sufficient security in lieu of a bond of caution under rule 33.4 of the Rules of the Court of Session
  2. 2 Whether a deed of indemnity is a suitable bond of caution
  3. 3 Whether further time should be allowed to provide caution

Ratio Decidendi

Neither the ATE insurance policy nor the deed of indemnity offered by the noter provided the clear, unqualified, and directly enforceable security required by rule 33.4 of the Rules of the Court of Session. The ATE policy was subject to insurer discretion, conditions, and was not directly enforceable by the respondents. The deed of indemnity was unsigned by all parties, conditional, and governed by English law, rendering it ineffective as a bond of caution. The noter's failure to provide suitable caution or any acceptable alternative justified refusal of the noter’s application and no further extension of time was warranted.

Court Disposition

Application refused; prayer of the note refused for failure to provide caution or suitable alternative.

Orders

  • Refusal to accept ATE policy as security in place of bond of caution
  • Refusal to accept deed of indemnity as suitable bond of caution