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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Meadowside Building Developments Ltd v 12-18 Hill Street Management Company Ltd  EWHC 2651 (TCC) (10 October 2019)
Cite as:  WLR(D) 650,  EWHC 2651 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Building, London, EC4A 1NL
B e f o r e :
| MEADOWSIDE BUILDING DEVELOPMENTS LTD (IN LIQUIDATION)
|- and -
|12-18 HILL STREET MANAGEMENT COMPANY LTD
Arthur Graham-Dixon (instructed by Russell-Cooke Solicitors) for the Defendant
Hearing dates: 25 September 2019
Crown Copyright ©
MR ADAM CONSTABLE QC :
B Background Facts
C Bresco: A Discussion
D Bresco: is there an exception to the rule?
F Application of Principles
B. Background Facts
'.1 the amount of expenses properly incurred by the Employer, including those incurred pursuant to clause 6.7.1 and, where applicable, clause 220.127.116.11, and of any direct loss and/or damage caused to the Employer and for which the Contract is liable, whether arising as a result of the termination or otherwise;
.2 the amount of payments made to the Contractor; and
.3 the total amount which would have been payable for the Works in accordance with this Contract.'
"Clearly the Adjudication procedure is incredibly useful in this regard. The issue of Adjudication proceedings often leads to an amicable settlement (during the Adjudication or after a decision is delivered)). It is also helpful because Pythagoras Capital can use its in-house legal and engineering/building expertise to run the Adjudication (Pythagoras is not a law firm, but Adjudication proceedings are not a reserved legal activity).
If Pythagoras Capital makes a recovery for the insolvent company then it will keep a pre-agreed percentage".
"The Contract Administrator has said that you (rather than the Contract Administrator) have raised various counterclaims. We would like to understand whether those counterclaims have any merit, and consequently, request that you send us … copies of all documents on which you rely in asserting that sums should be deducted from those owed by you to the Company and/or that the Company is indebted to you.
For the avoidance of doubt, we make this request pursuant to Section 236 of the Insolvency Act 1986. As you will no doubt be aware you have an obligation to comply with the liquidator's reasonable requests for information and documentation relating to the Company's affairs".
"To mitigate the above perceived theoretical risk to your Client (that it may consider the insolvency of Meadowside to effectively make enforcement proceedings futile), and as a condition of securing the ability to summarily enforce the Adjudicator's Award, Pythagoras Capital Limited will guarantee any liability (which we see as unlikely) Meadowside might incur to you if unsuccessful in the enforcement proceedings or if you choose to overturn the Adjudicator's decision by issuing proceedings, Pythagoras Capital Limited undertakes to guarantee the Claimant on the basis that: to the extent that your Client issues proceedings within 6 months of Meadowside's successful summary enforcement and, having done so, successfully overturns the Adjudicator's Award, Pythagoras Capital Limited guarantees payment to your Client of such sums as the Court may determine (limited as a maximum to the amount paid by your Client pursuant to the Adjudicator's decision) and will also pay your Client's reasonable and proportionate legal costs of such proceedings (to be assessed if not agreed).
Furthermore, if your Client successfully defends the summary judgment proceedings, we agree to guarantee payment of any adverse costs order made against Meadowside.
We are content to provide the first guarantee now, as a condition of your Client making payment voluntarily within 14 days and that the undertaking will also be given, as above, and effective to the extent that proceedings to overturn the Adjudicator's decision are issued within 6 months of the date of such voluntary payment."
"3. … as a condition of securing the ability to summarily enforce the Adjudicator's Decision, Pythagoras Capital Limited hereby guarantees:
a. the payment of any adverse costs order against the Claimant in favour of the Defendant in the event that this application for enforcement of the Adjudication Decision is unsuccessful;
b. the repayment of any sums paid following a successful enforcement of the Adjudication Award should the Defendant issue proceedings within 6 months thereafter and, having done so, overturns the Adjudication Award (to the extent to which the Adjudication Award is overturned); and
c. the payment of any adverse costs order against the Claimant in favour of the Defendant (to the extent that those costs resulted from the Adjudication Decision being overturned).
4. Pythagoras Capital guarantees payment of such adverse legal costs above to the Defendant to be assessed if not agreed."
"Should the Court think fit, the Claimant would be agreeable to the Adjudication Decision being enforced on condition that:
a. the liquidators of the Claimant ringfence any sums paid by the Defendant as a result for a period of 6 months and, should the Defendant issue proceedings within those 6 months to overturn the Adjudication Decision, until those proceedings by the Defendant are concluded. Those monies shall be repaid to the extent that the Defendant successfully overturns the Adjudication Decision; and
b. the enforcement is temporarily stayed until such time as the Claimant puts an insurance policy in place as described above."
'a. A Claimant (being an insolvent creditor), for whom Pythagoras Capital acts as agent, obtains a successful Adjudication decision and successfully applies for enforcement of that decision;
b. within a certain time frame (say 6 months), the Defendant issues proceedings to overturn the Adjudicator's decision;
c. the Defendant is wholly or partially successful in overturning the Adjudicator's decision.
In those circumstances, the policy will cover any adverse costs order that a Defendant might obtain against the Claimant (to the extent that those costs resulted in the Adjudication decision being overturned).'
C. Bresco: A Discussion
"In the circumstances of this case, an adjudicator's decision in favour of Bresco, a company in insolvent liquidation facing a separate cross-claim, will not be capable of being enforced. That would make the adjudication an exercise in futility. In accordance with Twintec, an injunction was therefore appropriate. There was no reason why this adjudication should have been permitted to continue; on the contrary, it was just and convenient to grant the injunction. Accordingly, I would uphold the decision of Fraser J, not on the grounds of theoretical jurisdiction, but on the grounds of practical utility."
(1) At paragraph 36, and in the following paragraphs, it is clear that the Court was 'focus[ing] on the utility (if any) to be derived from the adjudicator's theoretical jurisdiction, where the claiming company is in insolvent liquidation and the responding party has a cross-claim'. This, indeed, is often the position at the end of a construction contract where both employer and contractor will have claims against each other. However, implicit is the suggestion that if no cross-claim existed (so the only exercise was the valuation of the insolvent contractor's claims), different considerations might well apply to the consideration of the utility of the exercise;
(2) At paragraph 54, the Court acknowledged that Bresco applied in the 'ordinary' case, and that it may be in 'exceptional' circumstances, a company in insolvent liquidation (and facing a cross-claim) could refer a claim to adjudication, succeed in that adjudication, obtain summary judgment and avoid a stay of execution. By definition, therefore, the prohibition is not absolute. The question for this Court is to consider whether exceptional circumstances arise in the circumstances of this case.
'I consider that there is a basic incompatibility between adjudication and the regime set out in the Rules. The former is a method of obtaining an improved cashflow quickly and cheaply. The latter is an abstract accounting exercise, principally designed to assist the liquidators in recovering assets in order to pay a dividend to creditors. Rule 14.25 envisages the taking of a detailed account as between the company and the creditor, and the careful calculation of a net balance one way or the other, or quantifying the company's net claim against a creditor. By contrast, adjudication is a rough and ready process which Dyson J (as he then was) said in Macob Civil Engineering Ltd v Morrison Construction Ltd  BLR 93 was "likely to result in injustice". They are therefore very different regimes.'
"It is important to appreciate that in these passages Coulson LJ was contemplating a typical adjudication which only involves certain limited issues in dispute between the parties, rather than the (fairly rare) adjudication which deals with a contractor's final account and covers all the matters in issue between the parties. Such a decision would determine, albeit on an interim basis, the entirety of the dispute between the parties".
"48. First, a liquidator has, by definition, limited assets available to him or her with which to pursue the claims of the insolvent company. It would ordinarily be a waste of those limited assets to make a claim which could not be enforced or, at best, could only be enforced in exceptional circumstances."
49. I do not accept the idea that the adjudicator's decision might be of some use to the liquidator because it could somehow stand as a reduced proof amount (under Rule 14.11), or an estimate, or as some sort of assessment of the claim and cross-claim. The result of an adjudication is not the liquidator's best estimate of the value of a claim, but a sum found due by an adjudicator at a particular date, often based on the operation of the contractual payment provisions and the employer's failure to operate those provisions correctly. That may be far removed from the referring party's overall entitlement to recover, and the result would not be any kind of estimate or assessment of the parties' mutual debts."
"59. As to the assessment argument, Mr Arden QC made much of the fact that the result of the adjudication might prove useful to Bresco's liquidator, even without enforcement, because it would (or might) comprise an assessment of the net balance, I have rejected that submission in paragraph 49 above. In any event, this would require the responding party to participate in the adjudication and incur the costs of mounting its own cross-claim, just so that the liquidator can see what a net, non-binding result might look like. In circumstances where the liquidator would be unlikely to use litigation or arbitration for this exercise, because of the costs exposure, and/or in circumstances where the responding party would otherwise let its cross-claim lie because of the claiming party's insolvency, it would be an abuse of the cost-neutral adjudication regime to use it as a cheap assessment service, knowing that enforcement could never happen."
"….the argument overlooks the fact that although the result of an adjudication is not usually final, it may be final, or it may become final. This could happen because both parties agree to treat the decision as final and binding, or because the decision is not challenged by either party."
'That, as it seems to me, is entirely contrary to the public interest in the insolvency regime that exists in this jurisdiction. It is critical in the public interest that liquidators proceed in a manner that is uninhibited in terms of deciding how to bring actions, including how those actions are framed and funded'.
"Secondly, there are the costs incurred by the responding party. Why should a responding party have to incur the costs of defending an adjudication brought by a company in insolvent liquidation, when it knows that, even if it was unsuccessful in the adjudication, it would be able to resist summary judgment or enforcement as of right, although it would have to spend further sums to achieve that result? This would mean that the responding party was obliged to fund its (reluctant) role in a futile process. That must be wrong in principle."
'Thirdly, even if we assume that the company in insolvent liquidation is successful in the adjudication and that, for whatever reason, summary judgment is granted, the responding party would then have to bring its own claim in court to overturn the result of the adjudication. That would require yet more costs to be incurred by the responding party to regularise its position and recover the sums due from a company in insolvent liquidation. The obvious risks would be that any recovery may be rendered difficult or impossible by the liquidation, and that further costs would be lost in any event. Security for costs would not be available (because on this basis the responding party would be the claimant). Again, that seems to me to be wrong as a matter of principle.'
(1) Any recovery of the sum paid would be rendered difficult or impossible by the liquidation;
(2) Further costs would be incurred seeking to recover the sum;
(3) Security for costs would not be available, as the responding party would be the claimant.
"Finally, there is the question of the court's resources. If Mr Arden QC was right, so that companies in insolvent liquidation could commence and run adjudication proceedings all the way through to enforcement proceedings, to see how things might turn out at that stage, there would be an increase in the number of enforcement applications, and a further strain on the already overburdened resources of the TCC. It would have an adverse effect on other court users, including those companies who have organised their affairs in such a way that they are not in insolvent liquidation."
D. Bresco: is there an exception to the rule?
(1) The adjudication brought or to be brought determines the final net position between the parties under the relevant Contract. An adjudication, by definition, will not be able to determine the net position between parties with dealings on more than one contract. The extent to which the adjudication is not capable of dealing with the entirety of the mutual dealings between the parties (and as such will not mirror the Rule 14.25 process between the parties) is to be taken account of in all the circumstances when looking at the utility of the adjudication and the discretion either to injunct, or, following adjudication, to enforce;
(2) Satisfactory security is provided both:
(a) In respect of any sum awarded in the adjudication and successfully enforced, so that it is repayable should the responding party successfully overturn the decision in litigation or arbitration brought within a reasonable time of the date of enforcement;
(b) In respect of any adverse order for costs made against (or agreed by) the company in liquidation in favour of the responding party in respect of:
(i) Any unsuccessful application to enforce the adjudication decision;
(ii) The subsequent litigation/arbitration, in which the responding party is seeking to overturn the adjudication decision;
The extent to which any such costs order is ordered to be met from the security would be a matter for the Court, insofar as it was not agreed.
(3) What is satisfactory as security in form, duration and amount is a question on the facts in the ordinary way and may be provided incrementally (as it would be, for example, in any security for costs application). A combination of the following solutions might be appropriate:
(a) the liquidator undertaking to the court to ringfence the sum enforced so that it is not available for distribution for the relevant duration;
(b) a third party providing a guarantee or a bond;
(c) ATE insurance.
This is discussed further in Section F below, in the context of the offers made by Pythagoras.
(4) As discussed further below in Section E, any agreement to provide funding or security which permits the company in liquidation to avoid the ordinary consequences of Bresco cannot amount to an abuse of process.
(a) Funding agreements which do not leave the claimant as the party primarily interested in the result of the litigation will typically be champertous;
(b) The funding agreement is of a type regulated by the Damages Based Agreements Regulations (2013) ('DBAR 2013'), which permits a maximum recovery by the funder of 50% of sums awarded;
(c) In light of the refusal on the part of Pythagoras to disclose the nature of the funding agreement (and in particular what percentage of any proceeds it will be paid), it is not known whether the agreement is or is not champertous and/or outside the permitted agreements under the DBAR 2013;
(d) If the only basis upon which Meadowside/Pythagoras are offering security or bringing this claim is on the basis of or pursuant to an agreement which is champertous and/or not permitted under the DBAR 2013 (in either case, a funding agreement that should be regarded as 'illegitimate'), the Court should not allow them to be treated in an exceptional manner to avoid the position in Bresco. The legitimacy of the agreement therefore 'bears on' the enforceability of the decision;
(e) If potential illegitimacy of the funding agreement would be a ground for refusing summary judgment and/or allowing a stay, there is a real factual question in respect of whether the agreement is illegitimate, and that is a reason to refuse summary judgment.
(a) The funding agreement is not caught by the DBAR 2013, and is not champertous;
(b) Pythagoras is acting as agent for the liquidator and maintenance and champerty does not arise as a matter of principle;
(c) In any event, even if it was, this would not be a reason not to enforce by summary judgment the adjudication decision.
Does the DBAR 2013 apply to the funding arrangement in principle?
58AA Damages-based agreements
(1) A damages-based agreement which satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.
(2) But (subject to subsection (9)) a damages-based agreement which does not satisfy those conditions is unenforceable.
(3) For the purposes of this section—
(a) a damages-based agreement is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—(i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and(ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained
(7) In this section—
"claims management services" has the same meaning as in the Financial Services and Markets Act 2000 (see section 419A of that Act)
(7A) In this section (and in the definitions of "advocacy services" and "litigation services" as they apply for the purposes of this section) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated.'
(1) The version of s. 58AA(7) in force prior to 1 April 2019 stated that "claims management services" has the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act)."
(2) The current version of s. 58AA(7) states that ""claims management services" has the same meaning as in [the Financial Services and Markets Act 2000 (see section 419A of that Act)]."
"(b) "claims management services" means advice or other services in relation to the making of a claim,
(c) "claim" means a claim for compensation, restitution, repayment or any other remedy or relief in respect of loss or damage or in respect of an obligation, whether the claim is made or could be made–
(i) by way of legal proceedings,(ii) in accordance with a scheme of regulation (whether voluntary or compulsory), or(iii) in pursuance of a voluntary undertaking…"
"(1) In this Act "claims management services" means advice or other services in relation to the making of a claim.
(2) In subsection (1) "other services" includes—
(a) financial services or assistance,(b) legal representation,(c) referring or introducing one person to another, and(d) making inquiries,
but giving, or preparing to give, evidence (whether or not expert evidence) is not, by itself, a claims management service.
(3) In this section "claim" means a claim for compensation, restitution, repayment or any
other remedy or relief in respect of loss or damage or in respect of an obligation, whether the claim is made or could be made—
(a) by way of legal proceedings,(b) in accordance with a scheme of regulation (whether voluntary or compulsory), or(c) in pursuance of a voluntary undertaking.
If the DBAR 2013 applies, what is the effect on the appointment and these proceedings?
'(3) Subject to paragraph (4) in any other claim or proceedings to which this regulation applies, a damages-based agreement must not provide for a payment above an amount which, including VAT, is equal to 50% of the sums ultimately recovered by the client.'
In light of the finding as to non-compliance with the DBAR 2013, or in any event, is the funding agreement champertous?
"Where the law expressly restricts the circumstances in which agreements in support of litigation are lawful, this provides a powerful indication of the limits of public policy in analogous situations. Where this is not the case, then we believe one must today look at the facts of the particular case and consider whether those facts suggest that the agreement in question might tempt the allegedly champertous maintainer for his personal gain to inflame the damages, to suppress evidence, to suborn witnesses or otherwise to undermine the ends of justice"
"The difficulties and delays surrounding the introduction of conditional fee agreements permitted by statute emphasise the divergence of view. In my judgment, where Parliament has, by what are now (with section 27 of the Access to Justice Act 1999) successive enactments, modified the law by which any arrangement to receive a contingency fee was impermissible, there is no present room for the court, by an application of what is perceived to be public policy, to go beyond that which Parliament has provided. That applied with, if anything, greater force in 1993 than it does today."
If it is champertous, is there an abuse of process so as to justify a stay?
"A person who has funded an action champertously may fail to enforce recovery of the agreed proportion of the spoils. A person who has secured a champertous agreement to fund his litigation may be unable to enforce payment of the agreed funds. But the fact that a funding agreement may be against public policy and therefore unenforceable as between the parties to it is by itself no reason for regarding the proceedings to which it relates or their conduct as an abuse."
"Chadwick LJ then said :
It was accepted by this Court in Abraham v. Thompson that, although the court retains the power to stay proceedings if satisfied that they constitute an abuse of process, the mere fact that the proceedings are being financed by a third party with no interest in the outcome - other than in relation to the prospects of repayment - is not of itself sufficient abuse to invoke the jurisdiction of the court. The court is entitled to protect its own procedures; see Roache v. News Group Newspapers The Times, November 23, 1992; but it should be careful not to use that power so as to deny access to justice to a party who has sought to fund his proceedings in a way which may itself become contrary to public policy, unless that which has been done can be seen to amount to an abuse of the court's own process.
Chadwick L.J. considered what element of public policy was affronted by the funding arrangement in the case before the court. He referred to the well known passage from the speech of Lord Mustill in Giles v. Thompson  1 AC 142 at 161B. He said that the description of maintenance referred to in that passage was indistinguishable from that given by Jenkins L.J. in Martell v. Consett Iron. Chadwick L.J. then said:
"That conduct, of itself, has not been regarded as an abuse of process. Does the offensive conduct become an abuse because there is some notion of a division of the spoils? In my view the court is required to consider in the light of the facts in each case whether its process is affected or threatened by the agreement for the division of spoils."
57. Chadwick L.J. considered that there was no abuse of the process of the Court of Appeal if the appellant's ability to comply with an order for security for costs resulted from a funding agreement provided on terms that the funders would obtain a substantial premium on repayment of the loan. He considered that the court did not have any other interest in protecting its process from abuse which required it to prevent the appeal from continuing. He said that, although there might well be cases where the court could see that there is some feature - "some element of trafficking in litigation" - which must be regarded as abusive, that feature was not present in the case before the court. He also considered that the court should discourage satellite litigation of the kind before the court in that application.
58. Simon Brown L.J. agreed that the application for a stay should be dismissed. He said:
"What distinguishes lending from maintenance on the one hand and, in turn, maintenance from champerty on the other, seems to me at the border lines to raise very difficult questions. Similarly, the point at which any particular funding agreement, even assuming it is technically champertous, could be said to constitute an abuse of process is itself very far from clear. Many factors are likely to be in play. Amongst them will be these: (1) the terms of the funding agreement between the litigant and his funder; (2) their relationship quite apart from that agreement; (3) whether or not (and if so how and in what circumstances) the litigant proposes to repay the funder; (4) the relationship between the fund provided, the sum (if any) to be repaid and the sum at issue in the action; (5) the precise purpose within the proceedings for which the fund was provided."
"60. As Chadwick L.J. said in Faryab v. Smyth, the question whether the courts' process is affected or threatened by an agreement for the division of spoils is one to be considered in the light of the facts in each case. We reject Mr Glennie's submission that the court should formulate a more circumscribed test limited to a consideration of the structure and apparent purpose of the funding agreement and the kind of litigation to which it is directed. The considerations to which Simon Brown L.J. referred in Faryab v. Smyth may in a particular case be relevant and important but they are not exclusive nor necessarily determinative in the abstract. Unless the funding agreement is plainly and obviously champertous, it will usually not be necessary to decide that question for the reasons given by Chadwick L.J. and by Millett L.J. in Abraham v. Thompson.
61. Abuse of the court's process can take many forms and may include a combination of two or more strands of abuse which might not individually result in a stay. Trafficking in litigation is, by the very use of the word "trafficking", something which is objectionable and may amount to or contribute to an abuse of the process. We think that it is undesirable to try to define in different words what would constitute trafficking in litigation. It seems to us to connote unjustified buying and selling of rights to litigation where the purchaser has no proper reason to be concerned with the litigation. "Wanton and officious intermeddling with the disputes of others in which they [the funders] have no interest and where that assistance is without justification or excuse" may be a form of trafficking in litigation. Lord Mustill's words, quoted by Simon Brown L.J. in the context of an application to stay, are powerfully descriptive of the kind of plain and obvious champerty of which Chadwick LJ considered Faryab v. Smyth itself not to be an example. A large mathematical disproportion between any pre-existing financial interest and the potential profit of funders may in particular cases contribute to a finding of abuse but is not bound to do so.'
(1) The terms of the funding agreement between the litigation and his funder. This is probably the most essential piece of information, and has not been provided (despite numerous requests). Ms White submits that this is answered simply by the (known) fact that 'Pythagoras will be paid by a percentage of the fruits of litigation as and when realised'. This is obviously only a partial answer. Absent knowledge of the percentage, it is impossible to form any sensible view on the true balance of interests between the funder and the funded. Moreover, the fact that the Court has been provided only with the letter appointing Pythagoras as agent which does not include the basis of remuneration, it is plain that some other agreement, written or verbal, exists of which the Court has been provided no evidence.
(2) Their relationship quite apart from that agreement. The Court can accept that, apart from the agreement, there is no connection between Pythagoras and the Liquidator. However, the absence of a pre-existing relationship (as opposed to an interest in the underlying project, as was the case in Stocznia), whilst of itself not in any way determinative, may be an indicator for rather than against abuse of process;
(3) Whether or not (and if so how and in what circumstances) the litigant proposes to repay the funder. It is known (in general terms) that this is out of the fruits of the litigation as and when realised. However, it may be that the specific arrangement for the timing of repayment affects the nature of the interest in any subsequent litigation. For example, if sums recovered are to be provided to the Liquidator, net of Pythagoras' fee, immediately upon being 'realised' following a successful enforcement (without ringfencing) then those funds would be available for distribution. The only real interest in fighting the subsequent litigation would then be to ensure the guarantee was not called upon, and this interest would be entirely Pythagoras' (even if Pythagoras was ostensibly still the Liquidator's agent). On the other hand, the agreement might be that no payment from the fruits of the litigation takes place until after any 'final' determination (i.e. following subsequent litigation, or settlement, or the lapse of the guarantee). In these circumstances, both Liquidator and Pythagoras would retain interest (in their respective shares) throughout. This difference may be relevant to a distinction between mere champerty and an abuse of process.
(4) The relationship between the fund provided, the sum (if any) to be repaid and the sum at issue in the action. Without knowledge of the percentage recovery, the sum to be repaid (on any given assumption of success) and its relationship to the other sums is incapable of determination.
(5) The precise purpose within the proceedings for which the fund was provided. This is (probably) known: it is for funding the advancement of the claim in adjudication, enforcement, and subsequent litigation and the provision of any necessary security to make that possible.
F. Do the facts in this case amount to an exception?
(1) Alleged inadequacy of the wording of the Pythagoras Capital Guarantee;
(2) Alleged inadequacy of Pythagoras to stand as guarantor;
(3) The fact that no ATE insurance has in fact been provided at the date of the application;
(4) The fact no offer of security was made prior to commencing adjudication;
(5) Other conduct.
Alleged inadequacy of the wording of the Pythagoras Capital Guarantee
Adequacy of Pythagoras to stand as guarantor
The fact that no ATE insurance has in fact been provided at the date of the application
(1) The proposed policy does not cover the judgment sum. In circumstances, however, where the policy is provided hand-in-hand with an undertaking from the liquidator with respect to ringfencing, this is not an answer to the principle established above;
(2) The proposal is presently too vague. The proposal that the Court (and the Claimant) wait until the provision of a policy either does or does not materialise and analyse the position afresh is inappropriate. This should not happen: instead, the application for summary judgment should simply be refused.
Absence of security offered prior to commencing adjudication