“The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.”
“Is the meaning that should be given to the expression ‘cost (without proof or evidence of any actual cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant amount’ capable of including: (1) The actual or asserted cost to the relevant payee to fund or of funding the relevant amount by borrowing the relevant amount; and/or (2) The actual or asserted average cost to the relevant payee of raising money to fund or of funding all its assets by whatever means, including any cost of raising shareholder funding; and/or (3) The actual or asserted cost to the relevant payee to fund or of funding and/or carrying on its balance sheet an asset and/or of any profits and/or losses incurred in relation to the value of the asset, including any impact on the cost of its borrowings and/or its equity capital in light of the nature and riskiness of that assets; and/or (4) The actual or asserted cost to the relevant payee to fund or of funding a claim against LBIE.”
“In the ordinary course the value of having the use of money, sometimes called the “use value” or “time value” of money, is best measured in this restitutionary context by the reasonable cost the defendant would have incurred in borrowing the amount in question for the relevant period. That is the market value of the benefit the defendant acquired by having the use of the money.”
“I do not think the modern law is that interest is awarded against the defendant as a punitive measure for having kept the plaintiff out of his money. I think the principle now recognised is that it is all part of the attempt to achieve restitutio in integrum. One looks, therefore, not at the profit which the defendant wrongly made out of the money he withheld — this would indeed involve a scrutiny of the defendant's financial position — but at the cost to the plaintiff of being deprived of the money which he should have had. I feel satisfied that in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld.”
“I am also satisfied that one should not look at any special position in which the plaintiff may have been; one should disregard, for instance, the fact that a particular plaintiff, because of his personal situation, could only borrow at a very high rate, or on the other hand, was able to borrow at specially favourable rates. The correct thing to do is to take the rate at which plaintiffs in general could borrow money. This does not, however, to my mind, mean that you exclude entirely, all the attributes of the plaintiff, other than that he is a plaintiff … I think it would always be right to look at the rate at which plaintiffs, with the general attributes of the actual plaintiff in the case (though not, of course, with any special particular attribute), could borrow money as a guide to the appropriate interest rate … in commercial cases it seems to me that the rate at which a commercial borrower can borrow money would be the safest guide.”
“Interest is not an apt word to express the return to which a shareholder is entitled in respect of shares paid up in due course and not by way of advance. Interest is compensation for delay in payment and is not accurately applied to the share of profits of trading, although it may be used as an inaccurate mode of expressing the measure of the share of those profits.”
“The ordinary shareholders say that the preference shareholders are entitled to a return of their capital, with 5 per cent. interest up to the day of payment, and to nothing more. That is treating them as if they were debenture-holders, liable to be paid off at a moment's notice. Then they say that at the utmost the preference shareholders are only entitled to the capital value of a perpetual annuity of 5 per cent. upon the amounts paid up by them. That is treating them as if they were holders of irredeemable debentures. But they are not debenture-holders at all.”
“…can you be sure, regardless of the breadth of the parties and circumstances, that any particular approach to cost of funding is not capable of being a legitimate approach?”
“The certification process is an integral part of the regime. It ensures that, notwithstanding the broad concepts used in the Default Rate clause, and which are necessary for it to apply across a wide range of potential users and circumstances, determinations can be made with relative ease and certainty, without second-guessing and litigation, and will be binding so long as they have been made rationally and in good faith.”
“the experts agreed that the capital asset pricing model (“CAPM”) is an accepted method used to estimate a cost of equity based on market data”
“To give effect to the clarity, certainty, and predictability sought by ISDA and by the parties through their adoption of the ISDA Master, the Court finds that, as a general rule, selecting Loss to calculate an Early Termination Payment affords the non-defaulting party discretion and flexibility in selecting the means for calculating its Loss, subject to such methodology being reasonable and in good faith…. … …the fact that Lehman’s interpretation of the proper measure of Loss is in accord with the measure of Intel’s damages “under New York law”
“Thus, as pointed out by both Intel and ISDA, to prevail on this argument Lehman must overcome the challenge of deriving a textual mandate based on words that do not appear in the text of the definition of Loss itself but are that are instead used in calculating an Early Termination Payment using Market Quotation, the payment measure the parties could have chosen as an alternative to Loss.”
“If the correct answer is, if you can’t borrow you get 0 plus 1 per cent, the result of that is that a party that was able to and did raise equity funding and incurred the cost in doing so is assumed by this clause to have no cost of funding at all. We say that is an uncommercial outcome.”
“no particular tenor is prescribed for any transaction to borrow the relevant amount…The question whether it was appropriate to certify costs of funding based on one tenor or another is determined by the application of the test of good faith and rationality. In other words, where (for example) a party actually borrows funds at a particular tenor, the price it was required to pay for borrowing will represent its cost of funding the relevant amount unless it was irrational to borrow for that tenor…”
“Let’s see what you say you did, or let’s see what you say you would have done, and let’s assess that.”
“…this is a very significant development of Wentworth’s position in relation to the circumstances in which the certification is binding… … On any view, an attempt to take issues of fact entirely outside the presumptive effect given to the certificate, we say, would effectively destroy the finality that the process is intended to give, and involve a recognition of a very significant exception under the ISDA form which certainly, as far as we have been able to consider it since we heard this point developed today, does not find recognition in allied areas of the law which consider issues of contractual discretion or certification. The idea you get an untrammelled ability to investigate errors of fact is, we say, a heterodox submission for provisions of this kind.”
“If the answer to question 14 is that the relevant payee’s certification of its cost of funding is not conclusive and one of the requirements in (i) to (iii) set out in that question applies, where does the burden of proof lie in establishing, and what is required to demonstrate, that a relevant payee has or has not met such requirement?”
“Whether, on the true construction of the term “Default Rate” as it appears in the ISDA Master Agreement, the “relevant payee” refers to LBIE’s contractual counterparty or to a third party to whom LBIE’s contractual counterparty has transferred (by assignment or otherwise) its rights under the ISDA Master Agreement.”
“Subject to Section 6(b)(ii) [i.e. Transfers to Avoid Termination Events] and to the extent permitted by applicable law, neither this Agreement nor any interest or obligation in or under this Agreement may be transferred (whether by way of security or otherwise) by either party without the prior written consent of the other party, except that:- (a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all of its assets to, another entity (but without prejudice to any other right or remedy under this Agreement); and (b) a party may make such a transfer of all or any part of its interests in any Early Termination Amount payable to it by a Defaulting Party, together with any amounts payable on or with respect to that interest and any other rights associated with that interest pursuant to Sections 8 [Contractual Currency], 9(h) [Interest and Compensation] and 11 [Expenses]. Any purported transfer that is not in compliance with this Section 7 will be void.”
“Also, Section 7 now makes it clear that a Non-defaulting Party may transfer, together with its interest in any Early Termination Amount payable by a Defaulting Party, any amounts payable with respect of that interest pursuant to Sections 8, 9(h) and 11.”
“In general, an assignee cannot recover more from the debtor than the assignor would have. The purpose of the principle is to prevent the assignment from prejudicing the debtor. This would happen if, for example, he had to pay damages to the assignee that he would not have had to pay to the assignor if the assignment had not taken place.”
“Parties do not make contracts in a legal vacuum. They always negotiate against the background of the law. It is, therefore, reasonable to suppose that they take into account the general law in reaching their ultimate consensus. And, accordingly, the proper interpretation of their agreement is properly influenced by the legal background against which it is made.” (2) The principle was applied by the Court of Appeal in The World Symphony[1992] 2 Lloyd’s Rep 115 , in construing the terms of a charterparty in order to determine whether it permitted the charterers to order the vessel to undertake a round voyage which on no view would end before the expiration of the period of the charter. Lord Donaldson M.R. (in a judgment with which the other members of the Court agreed) concluded that the charterparty did not permit such a voyage, and noted that: “[I]t is for the parties to give expression to the terms of their bargain and this always has to be done against a background of general law and accepted principles, such as the prima facie risk of loss by delay in performance under a time-charter falls upon the charterer.”
“Whether the answer to questions 10 to 18…is different if the underlying Master Agreement is governed by New York rather than English law.”
“If a party fails to make a payment in due time, interest shall accrue on the amount outstanding, until such amount is received, at a rate which shall be equal to the interbank interest rate charged by prime banks to each other for call deposits at the place of payment and in the currency of the amount outstanding for each day on which such interest is to be charged, plus the interest surcharge referred to in Clause 12 sub-Clause (3). The right to make further claims for damages is not hereby excluded.”
“(2) The Agreement shall terminate, without notice, in the event of an insolvency. An insolvency shall be given, if an application is filed for the commencement of bankruptcy or other insolvency proceedings against the assets of either party and such party either has filed the application itself or is generally unable to pay its debts as they become due or is in any other situation which justifies the commencement of such proceedings. (3) In the event of termination upon notice by either party or upon insolvency (hereinafter called "Termination"), neither party shall be obliged to make any further payment or perform any other obligation under Clause 3 sub-Clause (1) which would have become due on the same day or later; the relevant obligations shall be replaced by compensation claims in accordance with Clauses 8 and 9.”
“Claims for Damages and Compensation for Benefits Received (1) In the event of Termination, the party giving notice or the solvent party, as the case may be, (hereinafter called "Party Entitled to Damages") shall be entitled to claim damages. Damages shall be determined on the basis of replacement transactions, to be effected without undue delay, which provide the Party Entitled to Damages with all payments and the performance of all other obligations to which it would have been entitled had the Agreement been properly performed. Such party shall be entitled to enter into contracts which, in its opinion, are suitable for this purpose. If it refrains from entering into such substitute transactions, it may base the calculation of damages on that amount which it would have needed to pay for such replacement transactions on the basis of interest rates, forward rates, exchange rates, market prices, indices and any other calculation basis, as well as costs and expenses, at the time of giving notice or upon becoming aware of the insolvency, as the case may be. Damages shall be calculated by taking into account all Transactions; any financial benefit arising from the Termination of Transactions (including those in respect of which the Party Entitled to Damages has already received all payments and performance of all other obligations by the other party) shall be taken into account as a reduction of damages otherwise determined. (2) If the Party Entitled to Damages obtains an overall financial benefit from the Termination of Transactions, it shall owe the other party, subject to Clause 9 sub-Clause (2) and, where agreed, Clause 12 sub-Clause (4), a sum corresponding to the amount of such benefit, but not exceeding the amount of damages incurred by the other party. When calculating such financial benefit, the principles of sub-Clause (1) as to the calculation of damages shall apply mutatis mutandis.”
“Unpaid amounts and any other unperformed obligations, and the damages which are payable, shall be combined by the Party Entitled to Damages into a single compensation claim denominated in Euro, for which purpose a money equivalent in Euro shall be determined, in accordance with the principles set forth in Clause 8 sub-Clause (1) sentences 2 to 4, in respect of claims for performance of such other overdue obligations.”
“A compensation claim against the Party Entitled to Damages shall become due and payable only to the extent that such party does not, for any legal reason whatsoever, have any claims against the other party (“Counterclaims”). If Counterclaims exist, their value shall be deducted from the total amount of the compensation claim that is due and payable. For the purpose of calculating the value of the Counterclaims, the Party Entitled to Damages shall (i) to the extent that they are not payable in Euro, convert such Counterclaims into Euro at a selling rate to be determined, if possible, on the basis of the official foreign-exchange rate applicable on the day of computation, (ii) to the extent that they are not claims for the payment of money, convert them into a claim for damages expressed in Euro and (iii) to the extent that they are not yet due and payable, take them into account at their present value (also having regard to interest claims). The Party Entitled to Damages may set off the compensation claim of the other Party against the counterclaims calculated in accordance with sentence 3. To the extent that it fails to do so, the compensation claim shall become due and payable as soon as and to the extent that it exceeds the aggregate amount of Counterclaims.”
“(1) If the obligor, following a warning notice from the obligee that is made after performance is due, fails to perform, he is in default as a result of the warning notice. Bringing an action for performance and serving a demand for payment in summary debt proceedings for recovery of debt have the same effect as a warning notice. (2) There is no need for a warning notice if: 1. a period of time according to the calendar has been specified, 2. performance must be preceded by an event and a reasonable period of time for performance has been specified in such a way that it can be calculated, starting from the event, according to the calendar, 3. the obligor seriously and definitively refuses performance, 4. for special reasons, weighing the interests of both parties, the immediate commencement of default is justified.”
“Any money debt must bear interest during the time of default. The default rate of interest per year is five percentage points above the basic rate of interest.” (2) Section 247 makes provision for the basic rate of interest to which 5% is to be added under section 288(1). The basic rate of interest is presently -0.83%: “(1) The basic rate of interest is [-0.83%] The zero rate reflects prevailing monetary policy in the Euro-zone, which supports negative interest rates in real terms. . It changes on 1 January and 1 July each year by the percentage points by which the reference rate has risen or fallen since the last change in the basic rate of interest. The reference rate is the rate of interest for the most recent main refinancing operation of the European Central Bank before the first calendar day of the relevant six-month period. (2) The Deutsche Bundesbank announces the effective basic rate of interest in the Federal Gazette without undue delay after the dates referred to in subsection (1) sentence 2 above.” (3) Section 248(1) outlaws agreements for the payment of compound interest: “An agreement reached in advance that interest due should in turn bear interest is void.”
“(4) The assertion of further damage is not excluded.”
“(1) A person who is liable in damages must restore the position that would exist if the circumstance obliging him to pay damages had not occurred. (2) Where damages are payable for injury to a person or damage to a thing, the obligee may demand the required monetary amount in lieu of restoration. When a thing is damaged, the monetary amount required under sentence 1 only includes value-added tax if and to the extent that it is actually incurred.” (2) Section 252 provides: “The damage to be compensated for also comprises the lost profits. Those profits are considered lost that in the normal course of events or in the special circumstances, particularly due to the measures and precautions taken, could probably be expected.” (3) Section 280(2) makes clear that a default under section 286 of the BGB is required in order for the obligee to pursue a claim for further damage under section 288(4) of the BGB: “(2) Damages for delay in performance may be demanded by the obligee only subject to the additional requirement of section 286.”
“Where no time for performance has been specified or is evident from the circumstances, the creditor may demand performance immediately.”
“(1) If the delivery of goods with a market or stock exchange price was agreed to take place exactly on a definitely fixed date or within a definitely fixed period, and if such date or expiry of the period occurs after the insolvency proceedings were opened, performance may not be claimed, but only claims for non-performance. (2) If financial performance with a market or stock exchange price was agreed to take place at a fixed date or within a fixed period, and if such date or expiry of the period occurs after the insolvency proceedings were opened, performance may not be claimed, but only claims for non-performance. In particular the following shall be regarded as financial performance: 1. the delivery of precious metals, 2. the delivery of securities or comparable rights if it is not intended to obtain a participation in a company in order to establish a long-term association, 3. performances in specie which have to be effected in foreign currency or in a mathematical unit, 4. performances in specie the amount of which is indirectly or directly determined by the exchange rate of a foreign currency or mathematical unit, by the interest rate prevailing for claims or by the price of other goods or services, 5. options and other rights to deliveries or performances in specie in the meaning of nos. 1 to 4, 6. financial securities within the meaning of section 1 subsection (17) of the Banking Act. If transactions in financial services are combined in a framework contract for which agreement has been reached that if grounds for insolvency exist it may only be terminated uniformly, the totality of these transactions shall be regarded as a mutual contract in the meaning of sections 103 and 104. (3) Such claim for non-performance shall cover the difference between the agreed price and the market or stock exchange price prevailing at a point in time agreed by the parties, at the latest, however, on the fifth working day after the opening of the insolvency proceedings at the place of performance for a contract with the agreed period of performance. If the parties do not enter into such an agreement, the second working day after the opening of the insolvency proceedings shall be decisive. The other party may bring such claim only as an insolvency creditor.” (Emphasis added.)
“20(1): Following LBIE’s administration, is a creditor entitled (and if so in what circumstances) to make a “damages interest claim” within the meaning of section 288(4) of the German Civil Code (BGB) on any sum which is payable pursuant to clauses 7 to 9 of the German Master Agreement? 20(2): If the answer to Issue 20(1) is yes, can (and if so, in what circumstances) all or part of such “damages interest claim” constitute part of “the rate applicable to the debt apart from the administration” for the purpose of Rule 2.88(9)?”
“for example, Judge Fischer’s original report deals with the effects of German insolvency law…which were not referred to in Wentworth’s original or revised position papers and which do not appear now to be relied on”
“Since the compensation claim is determined by Section 104 para. 3 Insolvency Code and not by the invalid Clause 8 para. 1 of the Master Agreement, the Court of Appeals should not have referred to September 15, 2008 for its calculation, but rather, as set forth in Section 104 para. 3 sentence 2 Insolvency Code, it should have referred to the second business day after the commencement of the insolvency proceedings, i.e. September 17, 2008. The Parties did not agree on any other point in time after the commencement of the insolvency proceedings, which may at the latest be the fifth business day after the commencement of the insolvency proceedings (Section 104 para. 3 sentence 1 Insolvency Code). For this reason, the claim must be recalculated in such respect.”
“To the degree Clause 3 para. 4 of the Master Agreement would require interest payments also for the compensation payment already starting at maturity, this rule would be invalid because it deviates from Section 104 para. 2 and 3 Insolvency Code; this regulation does not provide for any interest payment obligation starting already at maturity.”
“However, in the course of finally concluding the terminated transaction, damages may come to exist as a result of default [Verzug] or other breach of duty.” “As explained, there would be no concerns against damages claims on the basis of an attributable delay in finally concluding the claims under Section 104 Insolvency Code.”
“The first element of a default within the meaning of section 286 BGB is that the debtor fails to perform at the time performance is due.”
“It is not clear to me whether Dr Fischer is saying…that there is a general principle of German law that no default can occur (including by the giving of a warning notice) following the commencement of insolvency proceedings, wheresoever these insolvency proceedings may be commenced, or if Dr Fischer is saying that this only applies where the insolvency proceedings have the effect of depriving the debtor of the power to dispose of its assets. I am not an expert in English insolvency law but, based on the description provided to me of an English administration proceeding, it would appear that an administrator is able to act as agent of the company with the broad power range of powers specified in Schedule 1 to theUK Insolvency Act 1986 including the power to dispose of its assets. Clearly on the facts of the present case, no insolvency proceedings were commenced in Germany and so I do not see how the effects of a German insolvency proceeding could be relevant.”
“It is apparent from the Administration Summary that an administration under English law brings about a moratorium on proceedings against the debtor, that the creditors must file their proofs of debt in accordance with English insolvency laws, and that they will receive a percentage of their claims as provided under English insolvency law. The effects of an English administration on the enforcement of creditors’ claims against a debtor are therefore equivalent, at least in the essential points, with German insolvency law...”
“Therefore, in my opinion, the provision under sec. 286(1) BGB must be construed as meaning that the creditor cannot use a warning notice under sec. 286(1) to establish default on the part of the debtor against whom an administration has been ordered.”
“The provisions of both theCompanies Act 1948 and theBankruptcy Act 1914 with regard to the submission of proof are I think all directed to this end, that is to say, to ascertaining what, at the relevant date, were the liabilities of the company or the bankrupt as the case may be, in order to determine what at that date is the denominator in the fraction of which the numerator will be the net realised value of the property available for distribution. It is only in this way that a rateable, or pari passu, distribution of the available property can be achieved… (p. 764). …Secondly, even if these rights could be considered as of uncertain value, one has, I think, to inquire what it is that the creditor is seeking to do when he lodges his proof. What he is directed to do by the form of proof (and what all the previous authorities direct him to do) is to indicate the value of the claim at the date of the winding up order”
“[W]hat is the consequence of creditors coming in under a liquidation or bankruptcy? They come in under what is as much a compact as if each of them had signed and sealed and sworn to the terms of it—that the bankrupt's estate shall be duly administered among the creditors” (c) And see per Lord Toulson and Lord Sumption in Stichting Shell Pensioenfonds v Krys and another [2015] A.C. 616 at [31]: “For by submitting a proof the creditor obtains an immediate benefit consisting in the right to have his claim considered by the liquidator and ultimately by the court according to its merits and satisfied according to the rules of distribution if it is admitted.”
“If the answer to question 20 is that a further claim for damages can be included as part of the “rate applicable to the debt apart from the administration” for the purposes of Rule 2.88(9), how in such circumstances, is the relevant rate to be determined? In particular: (i) In circumstances where the relevant claim under the German Master Agreement has been transferred (by assignment or otherwise) to a third party is it the Damages Interest Claim which could be asserted by the assignor or the assignee which is relevant for the purposes of Rule 2.88(9)? (ii) Where the relevant claim under the German Master Agreement has been acquired by a third party, in what circumstances (if any) is such a third party precluded from asserting a Damages Interest Claim under principles of German law? (iii) Where does the burden of proof lie in establishing a Damages Interest Claim, and what is required to demonstrate, that a relevant creditor has or has not met such requirement?”
“The assignee is entitled to all subsequent claims resulting from the claim, in particular those under section 280 et seq. The assignee can therefore…autonomously assert claims if the debtor is in default towards the assignee…The amount of the default damages is, in principle, calculated based on the person of the assignee”
“…The granting of a subsequent performance determination right follows from the principle of sec. 404 et seqq. BGB, i.e. that the assignment of the claim against the debtor should not place the debtor in a worse position than he would be in without it.”
“If the creditor is a bank, it must be assumed that the sum of the funds intended for investment in its overall business, is reduced by the amounts that are paid late…What applies for banks also applies for other commercial capital investors such as investment companies and insurance companies that invest incoming sums unless they are required for ongoing business operations.”
“Whether the words “the rate applicable to the debt apart from the administration” in Rule 2.88(9) of the Rules are apt to include (and, if so, in what circumstances) a foreign judgment rate of interest or other statutory rate.”
“[t]he words the ‘rate applicable to the debt apart from administration’ cannot be read as including a hypothetical rate which would be applicable to a debt if the creditor took certain steps.”
“I conclude therefore that the words ‘the rate applicable to the debt apart from the administration’ in rule 2.88(9) do not include interest on a judgment entered after the commencement of the administration nor, still less, do they include interest at a rate which would have been applicable to a judgment entered after the commencement of the administration but which is not in fact entered.”
“Where a debt proved in the administration bears interest, that interest is provable as part of the debt except in so far as it is payable in respect of any period after [the Date of Administration]”
“If the creditor does not have a judgment at the date of administration, the debt proved by the creditor is not a judgment subsequently obtained but the debt as at the date of administration. In the case of an unascertained claim, the later judgment quantifies the claim but it is not the judgment debt which is the subject of proof.”
“The core of our position is that the moment it’s possible to identify an existing contractual right by which the parties are bound and which entitles a creditor to payment of interest on a provable debt, the rate for which that contractual right provides can be said to apply to the provable debt.”
“6. Whether, for the purposes of establishing, as required under Rule 2.88(9) of the Rules, ‘whichever is the greater of the rate specified under paragraph (6) and the rate applicable to the debt apart from the administration’, the amount of interest to be calculated based on the latter is calculated from: (i) the Date of Administration; (ii) the date on which the debt became due; or (iii) another date. 7. Whether Statutory Interest is payable in respect of an admitted provable debt which was a contingent debt as at the Date of Administration from: (i) the Date of Administration; (ii) the date on which the contingent debt ceased to be a contingent debt (including in circumstances where the contract was ‘closed out’ after LBIE entered administration); or (iii) another date, having regard to whether: (i) the contingent debt remained contingent at the time of the payment of: a) the final dividend; or b) Statutory Interest; and/or (ii) (to the extent applicable) the Joint Administrators revised their previous estimate of the contingent debt by reference to the occurrence of the contingency or contingencies to which the debt was subject. 8. Whether Statutory Interest is payable in respect of an admitted provable debt which was a future debt as at the Date of Administration from: (i) the Date of Administration; (ii) the date on which the future debt ceased to be a future debt; or (iii) another date, having regard to whether the future debt remained a future debt at the time of the payment of: (i) the final dividend; or (ii) Statutory Interest.” (i) the Date of Administration; (i) the Date of Administration; (ii) the date on which the contingent debt ceased to be a contingent debt (including in circumstances where the contract was ‘closed out’ after LBIE entered administration); or (iii) another date, having regard to whether: (i) the contingent debt remained contingent at the time of the payment of: a) the final dividend; or b) Statutory Interest; and/or (ii) (to the extent applicable) the Joint Administrators revised their previous estimate of the contingent debt by reference to the occurrence of the contingency or contingencies to which the debt was subject. (i) the Date of Administration; (ii) the date on which the future debt ceased to be a future debt; or (iii) another date, having regard to whether the future debt remained a future debt at the time of the payment of: (i) the final dividend; or (ii) Statutory Interest.”
“Issue 6 (paragraph 6 of the Application Notice) (xiii) For the purpose of establishing ‘whichever is the greater of the rate specified under paragraph (6) and the rate applicable to the debt apart from the administration’ (as required by Rule 2.88(9) of the Rules), the amount of interest to be calculated based on the latter is to be calculated from the Date of Administration. Issue 7 (paragraph 7 of the Application Notice) (xiv) Statutory Interest is payable in respect of an admitted provable debt which was a contingent debt as at the Date of Administration from the Date of Administration. Issue 8 (paragraph 8 of the Application Notice) (xv) Statutory Interest is payable in respect of an admitted provable debt which was a future debt as at the Date of Administration from the Date of Administration.”
“I conclude therefore on Issues 7 and 8 that, in the case of both future and contingent debts, interest is payable under rule 2.88(7) from the date that the company entered administration, not from the date (if any) on which any such debt fell due for payment in accordance with its terms. The parties are agreed that it follows that the comparison under Issue 6 is between judgment rate and the rate applicable apart from the administration, in each case from the date of administration”
“…the tenant cannot ascertain and therefore cannot pay the amount owed without a bill.”
“This means that the debtor must pay as quickly as possible by objective standards…taking into account an approximately necessary preparation…”
“Prior to the ascertainment of the single compensation sum is it possible to be sure which of the parties will be entitled to payment, quite apart from in what amount?”