Home Information Cases Sunwing Vacation Inc & Ors v E-Clear (UK) Plc & Ors (2011)

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Sunwing Vacation Inc & Ors v E-Clear (UK) Plc & Ors (2011)

Summary

It was appropriate to make an order requiring a company and its liquidators to disclose and permit the inspection of certain documents in accordance with the Insolvency Act 1986 s.112 and s.155 for use by companies in respect of overseas arbitration in which they were involved with other parties.

Facts

The applicant companies (X) sought disclosure of certain documents by the respondents, a company and its liquidators (Y), and permission for inspection. 

X had been involved in overseas arbitration with other companies. X sought an order pursuant to the Insolvency Act 1986 s.112 and s.155 for the purpose of using the documents in the arbitration.

Held

The first question was whether the making of the order was for the purpose of winding-up as required by s.155(1)DPR Futures Ltd, Re [1989] 1 W.L.R. 778 considered. If X received the documents they would use them to advance a claim against the respondents to the arbitration in which they were involved. X had stated that if there was a recovery against those respondents, credit would be given in relation to the amount of the recovery sought in the claim against Y. Therefore, if the documents turned out to be helpful to X, the result would be of benefit to Y and its creditors generally, Company (No.005374 of 1993), Re [1993] B.C.C. 734 considered. That was sufficient for the order to be for the purposes of winding-up. The second question was whether the making of the order was just and beneficial as required by s.112(2). It was beneficial for the purposes of the winding-up for credit to be obtained in relation to the claim against Y. Further, in the event that the documents were admissible and persuasive in the arbitration, it was in the interests of justice that the arbitration result took into account that material. As the terms of the proposed order posed no difficulty, it was appropriate to make the order sought (see paras 10, 14-15, 17-18, 20-22 of judgment).

Application granted

Chancery Division
Morgan J
Judgment date
3 June 2011
References

​ LTL 4/8/2011 : [2011] BCC 889 : [2012] 2 BCLC 104 : [2011] BPIR 1524 : [2011] Arb LR 34 : [2011] EWHC 1544 (Ch)