Jurisdiction(s):
United Kingdom

CMOs in high-value claims: CPR 3.12(1)(e) discretion and insolvency-funded litigation in Transworld v First Curaçao (High Court of England and Wales)

Published on: 18 January 2024

Published by a LexisNexis Restructuring & Insolvency expert

Legal News

Article summary

Transworld Payment Solutions UK Ltd v First Curacao International Bank NV [2023] EWHC 2407 (Ch)

What are the practical implications of this case?

The decision sets out, with frequent reference to earlier authorities, how the court approaches the question of whether to exercise its unfettered discretion to grant a CMO under CPR 3.12(1)(e). While the power is broad, a range of pertinent factors must still be evaluated. Notably for insolvency practitioners and those financing insolvency proceedings, the court placed significant weight in favour of making the order on the fact that the action was pursued by a liquidator, for the benefit of creditors, with litigation funding, notwithstanding that the liquidator could earn substantial remuneration if recoveries surpassed 50%. A CMO offers certainty around potential costs exposure, allowing all parties—particularly the liquidator—to manage risk, for example by arranging after-the-event insurance. Importantly, the liquidator’s remuneration arrangement carried little influence in the court’s overall analysis. In short, the case provides a clear route map for such applications, highlighting that the status of a funded, creditor-focused liquidator claim can be a powerful factor in favour of a CMO, without the fee terms materially detracting from that assessment...

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Popular documents

Using the Judicial College Guidelines to assess general damages in personal injury claims

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

Tomlin orders in England and Wales: CPR guidance on drafting, confidentiality, approval, variation, enforcement, limitation, CCA issues, court-specific requirements, sample wording and precedents

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...

Precedent: Deed of Surrender of Lease with Optional Premium, Settlement and Release, Landlord, Mortgagee and Guarantor Consents, Reimbursement and HM Land Registry Provisions (England and Wales)

Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...

Precedent Statutory Declaration: Standard Wording under the Statutory Declarations Act 1835

I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...