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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> CargoLogicAir Ltd v WWTAI AirOpCo 1 Bermuda Ltd [2024] EWHC 508 (Comm) (07 March 2024) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2024/508.html Cite as: [2024] EWHC 508 (Comm) |
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (KBD)
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
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Claimant |
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- and - |
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WWTAI AIROPCO 1 BERMUDA LTD |
Defendant |
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Mr Steven Thompson KC (instructed by Alius Law) for the Defendant
Hearing dates: 1 March 2024
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Crown Copyright ©
PAUL STANLEY KC:
Introduction
The claim and counterclaim
Is permission required?
Should permission be given? Principles
"An administration may be a prelude to liquidation or, once an administrator gives notice of an intention to make distributions to creditors, may be a substitute for liquidation. ... [B]efore that point is reached, the principal purpose of an administration is either to rescue the company itself as a going concern or to preserve its business or such parts of its business as may be viable."
Should permission be given? Delivery up
Should permission be given? Loss of rent claim
Adequacy of pleading
"loss of Base Rent ... from 4 April 2022 until 22 April 2027 ... less the market rent which would have been obtained in relation to the Aircraft in the same period for which sum WWTAI would give credit. WWTAI will seek to adduce and rely upon expert evidence as to the market for the Aircraft and the rent which would have been achievable. WWTAI claims on a present value basis."
i) accepts the principle that credit should be given for the market rent, but "(taking account of when the Aircraft was available to WWTAI, its condition, the availability of the Aircraft Documentation and the state of the market, including the likely time required to find a new lessee)".
ii) continues to contain a reservation of the right to rely on expert evidence, but also offers that "Pending the service of such expert evidence (and subject to revision upon such service) WWTAI's understanding is that the market rent for an aircraft of the age and type of the Aircraft would have been in the region of USD $310,000 [sic] per month provided the Aircraft Documentation had been available".
Information about the sale price
"As WWTAI has been unable to provide the buyer with the Aircraft Documentation, it is exposed to a claim from the buyer for breach of contract. WWTAI is entitled to and claims an indemnity from CLA in respect of that exposure."
Whether the Lessor is "exposed to a claim from the buyer for breach" must depend on the terms of the contract between the Lessor and its buyer. Although the defence and counterclaim does not in terms say that the sale contract was written, it is obvious that it will have been.
Costs of the Lessor's application under Part 18
i) The Lessor first made a request for further information on 19 September 2023. CLA responded to that request on 1 November 2023. Its answer provided some of the information sought, and declined to provide other parts of it.
ii) The Lessor then issued an application to require answers on 15 December 2023. The Lessor did not, before issuing that application, comply with paragraph D14.1 of the Commercial Court Guide, which requires counsel to confer before issuing an application, because experience shows that such discussions often result in a narrowing of the issues.
iii) Shortly after the application had been issued, there was, however belatedly, correspondence between counsel. Mr Kasriel provided a detailed commentary and raised various questions about the request. Mr Thompson did not respond substantively to that.
iv) One aspect of that correspondence was that, in late December, Mr Kasriel was able to explain to Mr Thompson that the administrators had gained access to previously inaccessible information, and would therefore be able at least in some respects to provide additional information.
v) CLA provided some additional information, particularly in relation to request 8, which it did on 19 January 2024. In other respects it maintained its objections to the request.
vi) In the light of that further information, the Lessor decided not to pursue its application, but nevertheless claims its costs. CLA says that there should be no order.
Conclusion