‘The test on an appeal against a voting decision is whether the challenge debt this is, on balance, owed. The legal burden must, in my judgment, be on the creditor… to establish the claimed indebtedness. Where the creditor has made a bona fide assessment of the unsecured element of a debt based on a respectable professional valuation, the evidential burden shifts to the debtor, though the legal burden remains on the creditor throughout. Once, therefore, the debtor puts in respectable evidence the other way, the question the court must ask is whether the creditor has on balance satisfied the court that the unsecured element of its debt is established in the amount claimed.’
‘As a generality …, it seems to me that unfair prejudice is directed at the effect of the scheme on the relevant creditor(s) whereas material irregularity is directed at some problem in the procedure by which the CVA becomes in force, usually with process of the creditor’s meeting. Examples of material irregularity might include misleading or incomplete information to those voting at the meeting, and other defects in procedure at about the meeting (such as a person being admitted to vote who should not have been or in the correct amount).’
“… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of the witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”. 12. The Court of Appeal made related observations in the case of Simetra Global Assets Ltd v Ikon Finance Ltd[2019] 4 WLR 112 . At [48] Males LJ said: “[48] In this regard I would say something about the importance of contemporary document as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party’s internal documents including emails and instant messaging. Those tend to be the documents where a witness’s guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgements in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less dead demeanour when giving evidence.” 13. I pause briefly to note that the observations of both Leggatt J and Males LJ arose in the context of commercial cases. In Martin v Kogan [202] FSR 3, the Court of Appeal again addressed the issue of witness evidence. At [88] Floyd LJ said this: “[48] Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed.. But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental shortcuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.”
‘No, no. Say we’ve had – an invoice has been paid for, say,£10,000 . For argument’s sake,£2,000 of that is VAT. Yes? When that VAT is then reclaimed by the company, that£2,000 needs to be spent on my project otherwise it is not a net zero effect.’
‘It could be and it can be’
‘Well, I have nothing to say to that.’
‘Yes. I mean, I assume, because otherwise I’m sure Mr Dhar [the Respondent] would have been on my back for the payment.’
‘Although the project was substantially completed, the Company did not issue a completion certificate due to concerns about receiving the final payment, as a result of the disputes.’
‘3. Common law doctrines preclude a person who has obtained a decision from one court or tribunal from bringing a claim before another court or tribunal for the same complaint. These rules are referred to as res judicata and merger. 4. To understand merger, it is necessary to understand the meaning of ‘a cause of action’
‘a complaint may consist of or include facts which constitute a cause of action. In my judgment, that is enough to show that a complaint may be, or include, a cause of action: see Letang v Cooper[1965] 1 QB 232 .’
‘For the purposes of [the doctrine of res judicata], it is sufficient as I see it that the ombudsman decides the question posed by facts constituting a cause of action. The rationale of res judicata would apply in those circumstances and none of the authorities shown to us require that the decision in terms decides whether or not a cause of action has been shown or what the parties’ legal rights or obligations were. In my judgment, it is sufficient that he decides whether the facts underlying a cause of action give rise to any claim is between the complainant and the adviser and whether the claimant has any remedy against the adviser relative to those facts. The fact that the remedy is not the same as would be awarded in a court of law is also not a requirement of res judicata: otherwise, res judicata would not be available if the first decision is that of a foreign court in which different remedies are available from those available in our courts. Again no authorities cited to us goes that far. That conclusion means that if the complainant were (unwisely) to accept an award offering him only an apology, res judicata would apply if he chose to bring court proceedings. His wiser course would be to reject the award altogether in those circumstances.’
‘… the burden of showing that the facts constituting a cause of action forms the basis of an award and that the same cause of action is relied on in the court proceedings lies on the adviser. If the court is not satisfied, there will be no res judicata. In short, the complainant has the benefit of any doubt.’
‘7(1) Where an adjudicator has been selected in accordance with paragraphs 2,5 or 6, the referring party shall, not later than seven days from the date of the notice of adjudication, refer the dispute in writing (the ‘referral notice’) to the adjudicator. (2) A referral notice shall be accompanied by copies of, or relevant extracts from, the construction contract and such other documents as the referring party intends to rely upon. (3) The referring party shall, at the same time as he sends to the adjudicator the documents referred to in paragraphs (1) and (2), send copies of those documents to every other party to the dispute. Upon receipt of the referral notice, the adjudicator must inform every party of the date that it was received.’
‘The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on more than one dispute under the same contract.’
‘The adjudicator shall reach his decision not later than – a) twenty eight days after receipt of the referral notice mentioned in paragraph 7(1), or b) forty two days after receipt of the referral notice if the referring party so consents, or c) such period exceeding twenty eight days after receipt of the referral notice as the parties to the dispute may, after the giving of that notice, agree…’
‘The decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement between the parties.’
‘This debt was admitted on review of the invoices that substantiated the debt’
‘Your vote at the meeting on the resolutions will not count unless you have lodged proof of your debt by no later than 4 p.m. on the business day before12 December 2023 , the Decision Date.’
‘Creditors entitled to attend and vote at the virtual meeting may do so personally or by proxy. A creditor can attend the virtual meeting and vote, and is entitled to vote if they have submitted proof of their debt by no later than 4 p.m. on the business day before the meeting. Failure to do so may lead to their vote(s) being disregarded.’
‘Creditors entitled to attend and vote at the meeting may do so personally or by proxy. A creditor can attend the virtual meeting and vote, and is entitled to vote if they have submitted proof of their debt by no later than 4 p.m. on the business day before the meeting. Failure to do so will lead to their vote(s) being disregarded.’
‘47.1 There was a predefined and strict deadline, which was plain from the documents; 47.2 There was therefore no discretion for any longer to be permitted to Kajaine Accountants – if longer was permissible (or there was to be a retained discretion), the wording of the notice had to state that. Instead, the sanction is clear: the vote will be disregarded; and 47.3 Since the Kajaine claim was submitted outside of that strict time limit, it had to be disregarded such that it could not be admitted for voting purposes.’