CENTENARY 6 LIMITED, RECLAIMING MOTION BY AGAINST ROBERT CAVEN AND KEVIN MAWER [2018] ScotCS CSIH_27 (10 April 2018)

CENTENARY 6 LIMITED, RECLAIMING MOTION BY AGAINST ROBERT CAVEN AND KEVIN MAWER [2018] ScotCS CSIH_27 (10 April 2018)

Neither the ATE insurance policy nor the Deed of Indemnity provided security equivalent to a bond of caution as required by section 726(2) of the Companies Act 1985 and RCS 33.4. The ATE policy was too precarious and did not provide a directly enforceable right to the respondents, while the Deed of Indemnity was ineffective and insufficient in form and substance. The Lord Ordinary was entitled to refuse the prayer of the note and the reclaiming motion is refused.

Citation
[2018] ScotCS CSIH_27
Parties
Noter and Reclaimer: Centenary 6 Limited; Respondent: Robert Caven; Respondent: Kevin Mawer
Jurisdiction
Scotland
Judgment Date
10 April 2018
Procedural Posture
Reclaiming Motion (appeal) / Appeal From Lord Ordinary's Interlocutor Refusing to Accept Security for Expenses
Outcome
Reclaiming motion refused; interlocutor of the Lord Ordinary affirmed.
Legal Topics
Security for Expenses, Caution (scottish Law), After the Event (ate) Insurance, Deed of Indemnity, Companies Act 1985 Section 726(2), Court of Session Rules Chapter 33
Civil Procedure Company Law Security for Expenses Caution (scottish Law) After the Event (ate) Insurance Deed of Indemnity Companies Act 1985 Section 726(2) Court of Session Rules Chapter 33

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Parties

Centenary 6 Limited

Noter and Reclaimer

Robert Caven

Respondent

Kevin Mawer

Respondent

Procedural Posture

Reclaiming Motion (appeal) / Appeal From Lord Ordinary's Interlocutor Refusing to Accept Security for Expenses

Legal Issues

  1. 1 Whether an After the Event (ATE) insurance policy or a Deed of Indemnity constitutes adequate security for expenses in lieu of a bond of caution under section 726(2) of the Companies Act 1985 and RCS 33.4.
  2. 2 Whether the Lord Ordinary erred in refusing to accept the ATE policy or Deed of Indemnity as sufficient security and in refusing the prayer of the note.

Ratio Decidendi

Neither the ATE insurance policy nor the Deed of Indemnity provided security equivalent to a bond of caution as required by section 726(2) of the Companies Act 1985 and RCS 33.4. The ATE policy was too precarious and did not provide a directly enforceable right to the respondents, while the Deed of Indemnity was ineffective and insufficient in form and substance. The Lord Ordinary was entitled to refuse the prayer of the note and the reclaiming motion is refused.

Court Disposition

Reclaiming motion refused; interlocutor of the Lord Ordinary affirmed.

Orders

  • Refusal of the reclaiming motion.
  • Refusal of the prayer of the note.