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Kirsten Fleming of Addleshaw Goddard examines the administrator’s application for permission to appeal the earlier judgment. Permission was refused by the Court of Appeal who will not generally interfere with the discretion of the judge of a lower court. In this case the Court of Appeal reaffirmed the balancing act set out in Re Atlantic Computers. For analysis of the judgement of the High Court, click here.
Promontoria (Chestnut) Limited v Craig and anor  EWHC 2405 (Ch)
Practitioners should note that the Court of Appeal will not generally interfere with the exercise of discretion by a judge of the lower court, having examined in judgment all of the available evidence. The decision of the Court of Appeal effectively reaffirmed the correct approach of the judge in the lower court of carrying out a balancing act per Re Atlantic Computers  Ch 505,  1 All ER 476.
The judgment in Promontoria (Chestnut) Ltd v Craig and another  EWHC 2405 (Ch) in October 2017 found against the administrators in seeking control of certain secured assets, and underlined the importance of consulting with secured creditors and the need to obtain reliable evidence of the value of the security assets in assessing whether control of the assets is necessary to achieve the purpose of the administration. For full details see news analysis: Administrators’ decision to remove receivers was unreasonable (Promontoria (Chestnut) Ltd v Craig and another)
The administrators sought to appeal this decision on the grounds that:
The Court of Appeal refused the administrators' appeal, on the basis that the judge did not interfere with the administrators' decision, but instead considered whether the respondent should be permitted to enforce its security. He therefore correctly directed himself in accordance with Re Atlantic Computers.
On the question of costs, the judge recognised the default rule but considered that there was good reason to depart from it in view of the administrators' actions.
Court: Court of Appeal
Judge: Right Honourable Lord Justice Lewison
Date of judgment: 5 January 2018
Kirsten Fleming specialises in corporate restructurings and insolvency but also has experience of personal insolvencies and debt recovery using Scottish and English procedures.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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