“68(1) All costs incurred as Collateral Agent pursuant to the terms of the Intercreditor Agreement, including the Collateral Agent’s costs and legal expenses relating to proceedings in Utah and England (2) An indemnity against any liability that he might have for the Claimant’s [sic] costs of these proceedings insofar as they are brought against him or by him in his capacity as the Collateral Agent.”
“This is essentially a dispute between two English entities about the duties one owed and owes to the other, and about the ownership and control of worldwide intellectual property rights currently in the hands of a British Virgin Islands company, having been transferred to that entity by one of the English protagonists.”
“I have always considered that I have no personal financial interest in these proceedings …. As Collateral Agent it was right and proper [to] defend the interest of Noteholders … I have the protection afforded by the Intercreditor Agreement.”
“Apart from the costs relating to the Application, [he is] seeking payment of historic costs relating to the legal action brought by the Claimants in England”
“to protect the integrity of the judicial process, by prohibiting parties from deliberately changing positions according to the exigencies of the moment and preventing parties from playing fast and loose with the court.”
“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all . . . It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before . . . While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”