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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> UTB, LLC v Sheffield United Ltd  EWHC 1663 (Ch) (29 June 2018)
Cite as:  WLR(D) 416,  1 WLR 5195,  EWHC 1663 (Ch),  WLR 5195
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Fetter Lane, London, EC4A 1NL
B e f o r e :
| UTB, LLC
|- and -
|Sheffield United Limited
Paul Downes QC and Emily Saunderson (instructed by Shepherd and Wedderburn LLP) for the Defendant
Hearing dates: 20-21 June 2018
Crown Copyright ©
Mr. Justice Fancourt:
"The benefits of this approach are that:
1. It is straightforward – it does not require any subsequent supervision or other interference by the Court in the affairs of the club;2. It does not encumber the club (or Blades) with debt or otherwise adversely impact on the club's (or Blades') financial position;3. It is neutral in its approach – it applies equally to both sides; and4. It is consistent with previous practice in terms of investments in the club."
When pressed as to why a loan arrangement was unacceptable to UTB, as opposed to being less attractive to Blades than an outright gift, Mr Gledhill could not add to what was said in this letter, save to say that it was possible that UTB took a more positive view about the likely outcome of the litigation than Sheffield did. It is fair to UTB to record that it also, quite recently, made a further proposal to Sheffield that Sheffield was not willing to accept, namely that Sheffield should make a repayable interest-free loan of the whole of the £2.5 million.
"The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so."
This confirms but does not create the power of the High Court, which derives from the practice of the Court of Chancery prior to 1873. The power to grant an injunction therefore exists and is unlimited (subject to there being jurisdiction over the defendant), but the settled practice of the Court has over time evolved to govern the way in which that power will and will not be exercised. The power is only exercised on a principled basis. The evolution has continued apace in the last 30 years in particular (since the days of the earliest 'Mareva' injunctions) and still continues, as shown by the extension to the Norwich Pharmacal line of authority recently considered by the Court of Appeal and the Supreme Court in Cartier International AG v British Sky Broadcasting Ltd  EWCA Civ 658 and  UKSC 28.
"These are highly persuasive voices that the jurisdiction to grant an injunction, unfettered by statute, should not be rigidly confined to exclusive categories by judicial decision. The court may grant an injunction against a party properly before it where this is required to avoid injustice, just as the statute provides and just as the Court of Chancery did before 1875. The court habitually grants injunctions in respect of certain types of conduct. But that does not mean that the situations in which injunctions may be granted are now set in stone for all time. The grant of Mareva injunctions itself gives the lie to this. As circumstances in the world change, so must the situations in which the courts must properly exercise their jurisdiction to grant injunctions. The exercise of the jurisdiction must be principled, but the criterion is injustice. Injustice is to be viewed and decided in the light of today's conditions and standards, not those of yester-year."
"The court may grant the following interim remedies-
…..(c) an order –(i) for the detention, custody or preservation of relevant property;(ii) for the inspection of relevant property;(iii) for the taking of a sample of relevant property;(iv) for the carrying out of an experiment on or with relevant property;(v) for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly; and(vi) for the payment of income from relevant property until a claim is decided."
"Relevant property" is defined by rule 25.1(2) as "property (including land) which is the subject of a claim or as to which any question may arise on a claim".
a. The fact that the grant of relief is only justified if it is necessary in order to preserve Blades as a solvent company pending the trial;
b. The exceptional nature of the mandatory relief being sought;
c. My finding that the finances of FC are such that it is not yet absolutely necessary but nevertheless desirable that further funding be introduced, and the existence of a risk of insolvency if it is not introduced;
d. The fact that UTB would be ordered to do something, against its will, which it has no obligation to do and which is contrary to the terms of the ISA (though the parties did act in the same way previously);
e. The fact that UTB is willing to gift £1.25 million to Blades if Sheffield does the same;
f. The fact that the ISA provides a remedy for the parties in the event of deadlock, which is for one party to buy out the other, not for the court to decide on another way of breaking the deadlock;
g. The conduct of the parties.