Jefferies International Ltd v Landsbanki Islands HF [2009] EWHC 894 (Comm)

[2009] EWHC 894 (Comm)Case No FOLIO 1209 OF 2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/04/2009
Before
THE HONOURABLE MR JUSTICE COOKE
Between
Jefferies International LimitedClaimantLandsbanki Islands HFDefendant
Mr G Moss QC and Miss C Reffin (instructed by Herbert Smith) for ClaimantMr M Crystal QC and Mr C Harrison (instructed by Squire Sanders & Dempsey) for DefendantHearing Hearing dates: 27 April 2009
Judgment

Background

[1]In this action the defendant (Landsbanki) applies for a stay of the proceedings brought against it by the claimant (Jefferies). It does so in reliance on the inherent jurisdiction of this court, as reinforced by the Supreme Court Act 1981 section 49(3) and CPR 3.1(2)(f). It is recognised that this is a matter for the court’s discretion although until recently Landsbanki contended that there was an automatic stay by reason of the law relating to insolvency in this country and Iceland and by reason of the national enactments of the Credit Institutions Directive which provides European wide rules for the insolvency of credit institutions and which is binding upon Iceland as an European Economic Area state (although it is not of course part of the European Community) and Landsbanki as a financial institution within such state. Only in the last few days has that case for a mandatory stay been abandoned.[2]Landsbanki is an Icelandic bank with a branch in London. It was the largest Icelandic bank when it collapsed in the Autumn of 2008. The majority of all banking transactions in Iceland were carried out by it and 2 other Icelandic banks, whose financial status was severely damaged by the collapse of Lehman Brothers in September 2008, which resulted in the Central Bank of Iceland acquiring 75% of one of those 3 Icelandic banks, when it appeared it would be unable to fulfil its payment obligations. Confidence was damaged in the Icelandic banks and credit lines were withdrawn so that by 6th October 2008 there was a real risk that Landsbanki would be unable to meet its short term commitments.[3]On 6th October 2008 therefore the Icelandic Parliament passed Act Number 125/2008 which authorised the Icelandic Financial Supervisory Authority (the FME) to take over banks facing payment difficulties and to limit or prohibit the disposal of banks’ capital and assets.[4]On 7th October 2008, apparently at the request of Landsbanki itself, the FME, in exercise of statutory powers, took over the powers of Landsbanki’s shareholders and replaced its directors with a committee called a “Resolution Committee”. According to its website that day, “Landsbanki would like to stress that the bank has not been put into liquidation but is in receivership which gives it a temporary protection from payment of debts and obligations as they fall due”.[5]On 8th October 2008 the UK government made the Landsbanki Freezing Order, 2008 SI No 2668, under the Anti-Terrorism, Crime and Security Act 2001, freezing the assets of Landsbanki’s London branch in the UK. The freezing order envisaged the granting of Treasury licences permitting payments and such licences were granted on 9th October and subsequently.[6]On 9th October the FME transferred Landsbanki’s domestic activities to New Landsbanki Islands in consideration of a bond which is to be valued by accountants in order to reflect fair compensation for the assets and liabilities transferred. The obligations of Landsbanki to Jefferies remained with the original company.[7]On 5th December 2008 Landsbanki applied to the District Court in Reykjavik and was granted a Moratorium Order or suspension of debt payments pursuant to the Icelandic Act on Bankruptcy and the Act on Financial Undertakings. This was said to be necessary for the restructuring of the bank. The Moratorium was to be effective until 26th February 2009 but was extended in March until 22nd November 2009.[8]Once again, following the initial announcement of the Moratorium, Landsbanki, by its website, stated that it was “not in any form of administration or liquidation process” and that the London branch and the powers given to local management of the branch to deal with its customers and vendors would remain in effect following the Moratorium. It referred to the freezing order made in the UK but stated that the London branch had subsequently been granted licences to operate its business by HM Treasury. Neither the freezing order nor the licences would be affected by the moratorium and the London branch would continue to be able to operate in the ordinary course of its business under such licences in the same way as it did prior to the moratorium. Similar information was given in a letter of the Chairman of the Resolution Committee dated 8th December, stating that the moratorium was not an insolvency or bankruptcy measure under Icelandic law and that the Assistant who had been appointed, Mr Bjarnason, was not an insolvency officer, although his consent was required to any material transactions, whilst the Resolution Committee retained the day to day management of the bank. It was stated that creditors and vendors currently dealing with branches of the bank that were still operating should notice no difference in their operation following the granting of the Moratorium.

The Claim

[9]Jefferies’ claim arises from a Global Master Securities Lending Agreement dated 16th June 2007 between it and Landsbanki under which Landsbanki lent securities to Jefferies against the transfer of collateral as defined in paragraph 2.1 of the Agreement. The Agreement provided that if at any time on any business day, the Aggregate Market Value of the Posted Collateral in respect of all the loans outstanding under the Agreement exceeded the aggregate of the required Collateral Values in respect of such loans, Landsbanki should, on demand, repay or redeliver as the case may be to Jefferies such Equivalent Collateral as would eliminate the excess. A failure to do so would amount to an Event of Default which, on notice, could give rise to a termination of the agreement and mutual accounting. Jefferies claims to have given notice on 7th and 8th October of the requirement to render Equivalent Collateral and on Landsbanki’s failure to repay and/or redeliver such equivalent collateral, to have served a Notice of Default, giving rise to termination of the agreement and accounting which resulted in a balance of €4.3 million approximately being owed as a debt by Landsbanki to Jefferies.[10]Issues arise as to Jefferies’ service of appropriate notices under the Agreement and as to its entitlement to payment under the termination accounting provisions. Landsbanki denies that the right to terminate arose and in addition alleges that its obligations under the Agreement were discharged by supervening illegality, or that the Agreement was frustrated, by reason of the Landsbanki Freezing Order. It is common ground that the Aggregate Market Value of the collateral posted by Jefferies exceeded the aggregate of the Required Collateral Values so that Jefferies would have been entitled to make a demand, and that Landsbanki made no payment on 7th October or subsequently. It is also common ground that the Landsbanki Freezing Order made any payment by Landsbanki a criminal offence unless a licence was given permitting such payment. Issues arise as to the exact date when any demand was made by Jefferies vis a vis the date when the order came into effect, which it did at 10.10 am on 8th October. Issues arise as to the general licence issued by HM Treasury which came into effect at 12.40 pm on 13th October 2008 and as to whether or not this permitted Landsbanki to make payments under the Agreement. Landsbanki’s contention is that it did not, because the Agreement had by then been discharged or frustrated by the effect of the order.

The Application for a Stay

[11]On 20th November 2008 Jefferies served its Claim Form and on 18th December 2008 Landsbanki served its Defence. A Reply and draft Amended Particulars of Claim followed on 12th February 2009, followed by a Case Management Conference pursuant to which Amended Particulars of Claim and an Amended Defence were served, the latter on 12th March. At the Case Management Conference a time table was set out for the stay application which Landsbanki wished to advance and an application notice was issued on 16th March seeking a declaration that the proceedings were already stayed, alternatively applying for them to be stayed and for payment of costs of the application. No grounds were identified in the application notice itself, Landsbanki stating that it would rely on 3 witness statements which were served in support of it. These witness statements included expert evidence on Icelandic law and concluded that the effect of the order of the District Court of Reykjavik dated 5th December 2008 (as continued by a further order dated 3rd March 2009) for an order of “Greioslustoovun” (the Moratorium Order) was that legal proceedings, initiated against Landsbanki before the Moratorium order was made, could not be continued whilst the Moratorium Order remained in force and that the claim in the English High Court could not, as a matter of law therefore be continued whilst the moratorium remained in being.[12]As appears from the second supplemental expert report of the Icelandic lawyer consulted by Landsbanki, new insolvency legislation was passed by the Icelandic Parliament on 15th April 2009 and came into force on 21st April 2009. That has the effect of repealing paragraph 6 of Article 98 of the Act on Financial Undertakings which had previously provided that “legal proceedings which were initiated before a Moratorium Order should not be continued whilst the Moratorium Order was in place”. The repeal of that paragraph means that there is now no provision under Icelandic law for the automatic stay of court proceedings against a financial undertaking subject to a Moratorium Order, where those proceedings were initiated prior to the issue of the Moratorium Order. Any argument therefore based on the requirement for a stay of proceedings, as a matter of Icelandic law, purportedly incorporated into English law, has therefore disappeared and Landsbanki’s skeleton argument dated 20th April and the subsequent service of that statement on 22nd April, revealed that Landsbanki is now pursuing its application for a stay solely on the alternative ground originally advanced in its first batch of witness statements, namely that of comity, which, according to Landsbanki’s solicitor’s first statement, requires a stay, because the purpose of the Moratorium Order was to allow a breathing space for the reorganisation of Landsbanki for the benefit of creditors as a whole.[13]As matters developed during the course of argument, Landsbanki’s ultimate contention was that the court should exercise its case management powers under CPR3.1(2)(f) to stay the proceedings for a limited period only on the basis of an undertaking, not precisely formulated but put forward at the end of leading counsel’s reply for Landsbanki. It was suggested that the court should order a stay for a period of months against an undertaking that Landsbanki would agree to lift such a stay if the dispute between the parties was not resolved through the Administrative Claims Process of the Icelandic Insolvency Regime. The original claim for a permanent stay was therefore effectively abandoned.[14]Landsbanki submits that it is well established in the insolvency field that the English Courts at common law have a wide discretion to provide assistance to a foreign insolvency proceeding by doing whatever is just and appropriate in all the circumstances of the particular case, at least to the extent to which they can do so in the case of a domestic insolvency. Reliance is placed on the dictum by Lord Hoffmann in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Capital Creditors of Navigator Holdings plc [2007] 1 AC 508 at paragraph 22:
“The domestic court must at least be able to provide assistance by doing whatever it could have done in the case of a domestic insolvency. The purpose of recognition is to enable the foreign office holder or the creditors to avoid having to start parallel insolvency proceedings and to give them the remedies to which they would have been entitled if the equivalent proceedings had taken place in the domestic forum.”
[15]By paragraph 5(1) of the Credit Institutions (Reorganisation and Winding Up) Regulations 2004 of the UK:
“5(1) An EEA insolvency measure has effect in the United Kingdom in relation to – (a) any branch of an EEA credit institution (b) any property or other assets of that credit institution, (c) any debt or liability of that credit institution, as if it were part of the general law of insolvency of the United Kingdom.” (a) any branch of an EEA credit institution (b) any property or other assets of that credit institution, (c) any debt or liability of that credit institution, as if it were part of the general law of insolvency of the United Kingdom.”
[16]It is common ground that the Moratorium Order of 5th December 2008 issued by the Reykjavik court is an EEA insolvency measure within the meaning of the 2004 UK Regulations and that Landsbanki is an EEA credit institution with a London branch which falls within the ambit of paragraph 5(1). The evidence of the Icelandic lawyer consulted by Landsbanki in his first statement was that Landsbanki was subject to Financial Reorganisation within the meaning of Chapter XII of the Icelandic Act on Financial Undertaking as a result of the Reykjavik order of 5th December 2008 but was not subject to winding up.[17]Landsbanki says that Jefferies is fully entitled to participate as a claiming creditor in the reorganisation proceedings in the same way as any other creditor by attending creditors meetings and receiving information and raising objections as to extensions of the Moratorium Order and the like and can now participate in an Administrative Claims Process set up in Iceland.

The Insolvency Regime in Iceland

[18]It is necessary to explore the Icelandic Insolvency Regime because it is against this background that Landsbanki submits that the court must consider the exercise of its discretionary case management powers. I was taken through the Icelandic Act on Bankruptcy of 1992 and the Act on Financial Undertakings of 2002 in general outline. In Chapter XII of the latter statute, provision is made for Financial Reorganisation, Winding Up and Merger of Financial Undertakings such as Landsbanki. It is common ground that the order of 5th December 2008 constituted a Financial Reorganisation, which is defined by Article 98 to mean “measures intended to maintain the institution’s financial position or to restore it to normal and which could affect prior rights of third parties, including measures which could conceivably involve a suspension of payments, suspension of enforcement measures or a reduction of claims”. By emergency legislation in October and November 2008, amendments were made to that statute and in particular, by Act No 129/2008, Article 98 of the Act on Financial Undertakings was amended to include four new paragraphs which provided for a District Court in Iceland to grant a Moratorium Order for a period of 3 months with the ability thereafter to extend it for a period not exceeding 24 months in all. Further, by that amendment, legal proceedings were not to be initiated against a financial undertaking whilst a Moratorium of payments was in effect unless expressly authorised by law (with an exception for criminal acts) and, where legal proceedings had already been initiated against a financial undertaking that was subsequently the subject of a Moratorium Order, those proceedings were not to be continued whilst the Moratorium was in being, unless expressly authorised by law (again with the exception of criminal proceedings).[19]By Article 99(h) of the Act on Financial Undertakings, the legal effect of a Financial Reorganisation on pending law suits concerning assets of an entity such as Landsbanki is to be governed by the law of the state where the law suit was instituted.[20]The evidence showed that the emergency legislation of 6th October 2008 which authorised the FME to take over banks facing payment difficulties and to limit or prohibit the disposal of the capital and assets of financial enterprises also gave priority on liquidation to claims resulting from deposits with Landsbanki, which amount in total to more than €9.2 billion (where 1 billion = 1 thousand million) and that this amounted to substantially more than 30% of Landsbanki’s total liabilities. The emergency legislation meant that unsecured claims could not be paid, save where necessary for the continuation of the ordinary course of business, until creditors with priority claims had been paid in full. Other priority claims, as might be expected, included the wage claims of employees.[21]When the Resolution Committee was appointed by FME, it took executive control of Landsbanki and replaced its Board of Directors and under the 5th December order, Mr Bjarnason was appointed Assistant with responsibility for the conduct of the suspension of payments regime.[22]As already mentioned, on 15th April 2009, amending legislation was passed which repealed Article 98 of the Act on Financial Undertakings which had previously provided for an automatic stay of any existing court proceedings against a financial undertaking such as Landsbanki, on the making of a Moratorium Order. The effect of this was described in the last statement of the expert lawyer whose evidence was adduced by Landsbanki. Having stated that there is now no provision under Icelandic law for the automatic stay of court proceedings initiated prior to the issue of a Moratorium Order against a financial undertaking, he pointed out that there was still no possibility of enforcement since claims against financial undertakings were to be treated for this purpose in the same manner as claims against a company in winding up. Nonetheless, under Articles 116 and 117 of the Act on Bankruptcy, a creditor which had commenced proceedings before the issue of the Moratorium Order was able to chose either to continue the court proceedings which it had begun or to implement the Administrative Claims Process provided by the latter article which set out a procedure for making claims in that way. If the claim was rejected in that process however and the creditor was unwilling to accept that determination, the creditor could raise an objection at a creditors meeting and if the matter could not be resolved in this way, the matter had to be referred to the District Court in Iceland for decision.[23]Although the evidence on this was not entirely clear, since paragraphs 5-7 of the expert’s report was not entirely consistent with the temporary provisions set out in the document which was put before me as representing the 15th April legislation, the position appears to be as follows. The general effect of the enactment of the amending legislation is that the Act on Bankruptcy Winding Up Procedure now applies to financial undertakings subject to Moratorium Orders, subject only to specific provisions to the contrary. The temporary provisions provide that the Moratorium on payment is to remain valid in spite of the entry into force of the amending legislation but that certain elements of the winding up regime are to operate for entities such as Landsbanki from the date of the amending legislation. When the Moratorium ends, the entity will automatically be considered to be in the course of winding up. The Resolution Committee is to continue its activities without changing its name but will carry out the role intended for a winding up committee, though at some stage a Winding Up Committee will be appointed. As submitted by counsel for Landsbanki, the inter-relationship between the activities of the Resolution Committee, the Assistant and the Winding Up Committee appear to require further clarification.

Jurisdictional Issues

[24]Insofar as it was at any time contended that the court should grant a stay of the English proceedings and that Jefferies should be restricted to the pursuit of the Administrative Claims Process in Iceland, with any determination of the validity of the claim resolved by the Icelandic District Court, as the Icelandic regime requires, that argument falls foul of decided authority. The Agreement between the parties contained an English law and exclusive jurisdiction clause. The parties had therefore agreed that any dispute under the Agreement should be resolved by the courts of England. Any stay which had the effect of depriving Jefferies of resort to the courts of the agreed jurisdiction would not only be unjust, but contrary to principle.[25]I was referred to the decision of Lawrence Collins J (as he then was) in Mazur Media Limited & Another v Mazur Media Gmbh [2004] EWHC 1566 and in particular to paragraphs 69 and 70. There, the first defendant was sued in England under a Share Sale Agreement which contained an English exclusive jurisdiction clause. Subsequently insolvency proceedings against the first defendant, which was a German company, were instituted in Germany and it applied for a stay under section 130(2) of the Insolvency Act 1986, relying upon the existence of those insolvency proceedings. Under the law of Germany, such proceedings in Germany would have been stayed. Paragraph 69 and 70 of the judgment read as follows:- “69. In fact the court has an inherent discretion, reinforced by the Supreme Court Act 1981, section 49(3), to stay proceedings, whenever it is necessary to prevent injustice. But the power cannot be used in a manner which is inconsistent with the Judgments Regulation. Section 49 of the Civil Jurisdiction and Judgments Act 1982 provides that nothing in that Act prevents the court from exercising its power to stay, where to do so is not inconsistent with the Brussels or Lugano Conventions. That section has not been amended to refer to the Judgments Regulation, because the Regulation is directly applicable without national legislation. Where the court has jurisdiction under the Judgments Regulation, the power of the court to stay proceedings cannot be used simply because another Regulation state is the forum conveniens: Dicey & Morris, The Conflict of Laws, 13th ed (2000), para 11-012. 70. It follows that the power should not be used simply because the claim in the English proceedings could be made, or more appropriately made, in the German insolvency. I would accept that there is a power to stay English proceedings in favour of insolvency proceedings in a Regulation state to prevent injustice, but it would require exceptionally strong grounds for the English court to exercise that power, particularly where (as regards the contractual claim) the parties have conferred exclusive jurisdiction on the English court. Otherwise, the court would be circumventing the Judgments Regulation by introducing forum non conveniens principles by the back door.”[26]Given the existence of the exclusive jurisdiction clause in favour of the English courts and the application of the Lugano Convention to the Agreement between an Icelandic entity and an English entity, the decision in Mazur appears to me to be directly applicable, save that Jefferies’ case is stronger than that of the claimant in Mazur because the current position is that no such stay is required under the domestic law of Iceland. However, in my judgment, Landsbanki can only succeed if some exceptionally strong grounds can be found for ordering such a stay which do not have the effect of depriving Jefferies of its chosen jurisdiction or bringing in forum non conveniens arguments by the back door. The discretionary power should not be used at all if it conflicts with the Conventions.[27]Section 49(3) of the Supreme Court Act 1981 gives a general power to the court to stay proceedings where the interests of justice require it but section 49 of the Civil Jurisdiction and Judgments Act applies to prevent the court from doing so on the ground of forum non conveniens if to do so would be inconsistent with the Lugano Convention. Any stay to be ordered, must therefore not cut across the jurisdiction of this court to determine issues which arise under the Agreement.[28]It was for this reason that, ultimately, Landsbanki accepted that only a temporary stay can be granted under the court’s case management powers.[29]I consider that this concession was rightly made, a conclusion reinforced by a decision of Beatson J in Equitas Limited v Allstate Insurance Company [2008] EWHC 1671 (Comm). At paragraph 64 in that decision, Beatson J stated that the weight of the authorities suggested that the court was deprived of its common law discretion to stay proceedings in favour of another jurisdiction on forum non conveniens grounds, where the Judgment Regulation applied (replacing the Brussels Convention). There, counsel for the claimant accepted that there was no jurisdictional basis to stay the English action and, as in the present case, relied upon the court’s case management powers. Reference was made to other authorities which decide that a stay should not be granted in the exercise of the court’s management powers where the effect of doing so would in substance be permanent and would therefore conflict with the jurisdictional choice of the parties and the terms of the Judgment Regulation. Moreover, the fact that the proceedings, in which the stay is sought, are brought in this county, pursuant to an exclusive jurisdiction clause, is a matter of relevance in the context of the exercise of case management powers. The authorities cited by Beatson J refer to the need for “rare and compelling circumstances” for such a stay, somewhat similar to the test for a stay used in the context of forum non conveniens. Where the claimant has founded jurisdiction in this country as of right, it is particularly significant that the jurisdiction of the English court is founded on a contractual provision.

Case Management Grounds for a Stay

[30]Landsbanki submits that the regime brought into being by the Moratorium Order is for the benefit of creditors as a whole and operates under the aegis of the Icelandic court with a view to Landsbanki maximising the realisations from its trading book and its assets, for the benefit of the company and its creditors. It is therefore, absent some compelling reason, said to be inappropriate for resources to be diverted from the natural course of the reorganisation procedure in the shape of staff time and work and the costs involved in engaging external lawyers to deal with court proceedings when the prospect of Jefferies making any significant recovery of money is said to be minimal. The evidence from Mr Bjarnason was that, were Jefferies’ claim to succeed in full in the amount of €4.3 million approximately, this would represent approximately 0.025% of the claims which are ranked after the €9.2 billion of depositors claims amounting in total to €17.6 billion. His evidence was that it was “at least possible that the aggregate costs of pursuing this claim to trial may exceed any dividend to which Jefferies might become entitled, were their claim to succeed”. This point was made in the context of future costs on Landsbanki’s part amounting to over £300,000.[31]It was further contended that the stay would not be disadvantageous to Jefferies because it cannot enforce its claim during the currency of the Moratorium Order, even if it were to proceed to trial and obtain a judgment. For the same reason, it would be unable to enforce any order for costs. Although there was no evidence to this effect, counsel for Landsbanki, on instructions said that there were no Icelandic creditors in the same position as Jefferies, namely entities which had commenced proceedings prior to the Moratorium Order.[32]In order to aid the Icelandic Insolvency Regime, it was argued that this court should stay the action in order to prevent diversion of Landsbanki’s limited resources in defending the claim. Jefferies has estimated its costs to trial at £220,000 whereas Landsbanki’s estimate of future costs is £300,000, because its estimate of trial duration is longer, it proposes to engage leading counsel and it contends that Jefferies has failed to take account of the cost of expert evidence which will be needed on quantum.[33]Arguments that Jefferies had no good reason to proceed to trial and arguments about analogies with English domestic insolvency arrangements seem to me to take matters no further. Whether or not the Icelandic regime can be compared to Company Voluntary Arrangements for large or small English companies or to English companies in Administration appears to me to be somewhat beside the point. Although I was referred to a dictum of Nicholls LJ in Re Atlantic Computer Systems plc [1992] CH 505 at page 528 B-D, about the object of administrations, with a moratorium on the enforcement of debts and rights against the company which would give the administrator time to formulate proposals, lay them before the creditors and implement any proposals approved, each case must turn on its own facts. Where the court’s case management powers are prayed in aid in support of a foreign insolvency, in the face of an English exclusive jurisdiction clause, as I have already indicated, there must be strong and compelling reasons for such a stay to be granted.[34]Although Landsbanki relied on CPR1.4 and the court’s duty actively to manage cases to further the overriding objective of enabling the court to deal with cases justly by encouraging the parties to co-operate with each other in the conduct of proceedings, encouraging the parties to use an alternative dispute resolution procedure if the court considers it appropriate and facilitating the use of such procedure, helping the parties to settle all or part of a case, considering whether the likely benefits of taking a particular step justify the cost of taking it and thus dealing with matters proportionately, I do not consider that any of these features of case management, nor any of the factors put forward by Landsbanki could justify a stay in the present action.[35]Whilst Landsbanki rely on the dictum of Laddie J in Holdenhurst Securities plc v Cohen [2001] 1 BCLC 460 at paragraph 11 where, having referred to the comments of Nicholls LJ, he stated that one of the objectives must be to prevent the company’s assets being squandered on unnecessary and pointless litigation where creditors wish to improve their own position at the expense of others, I have no evidence that continued pursuit of this litigation is pointless. Notwithstanding Mr Bjarnason’s evidence as to the aggregate of outstanding priority and non-priority claims, Jefferies consider it worth their while pursuing the matter. Notwithstanding the suggestion on Landsbanki’s part that, given the Moratorium Order, it had no option but to defend this action, I cannot see any evidence which suggests that the Resolution Committee or the Assistant were not capable of agreeing the claim in part or in full, if they considered it justified to a greater or lesser extent. Equally, although Landsbanki told me that I should not assume that, if the matter was referred to the Administrative Claims Process, it would be rejected because it had already been rejected in this litigation, it appears to me that that is the most likely position. For an entity in Landsbanki’s position to have spent the money it has already spent in defending this claim, in pursuing this application and in contemplating the further defence of the action in the absence of a stay, it must have taken a view, based on advice about the merits of the claim which militates against a sudden acceptance of it by the Resolution Committee, the Winding Up Committee, the Assistant or the Trustee in Bankruptcy. I cannot therefore see the benefit in staying the action in order to allow the matter to be put into the Administrative Claims Process, without any intimation as to the time which the process would take nor any confidence that the outcome would be other than a rejection of the claim which has already been vigorously denied. The effect of a stay would be the adjournment of the trial which is fixed for July of this year and the postponement of any determination of the claim which Jefferies considers worth pursuing in the courts of the agreed jurisdiction.[36]It is suggested that the litigation will not achieve anything and will merely result in the dissipation of Landsbanki’s assets in fighting it and this should not be countenanced in the light of the Icelandic Insolvency Regime created by the 5th December Moratorium Order and the Icelandic legislation to which I have referred. This argument, as with many of the other factors put forward by Landsbanki falls foul of the recent amending legislation since in Iceland itself, a creditor in the position of Jefferies would be given the choice whether to continue with litigation or to embark on the Administrative Claims Process. Since the Icelandic Insolvency Regime allows for such a claim to be pursued, I cannot see how it can be said that the English court should adopt a different procedure and deprive Jefferies of one of the options which it would have if this claim was being pursued in Iceland. The stay which is sought does not therefore assist the Insolvency Regime in Iceland. What Landsbanki seeks to do is to produce a better position for itself in England than it would have in Iceland with a creditor in Jefferies’ position. Originally, Landsbanki was arguing that because the Icelandic legislation provided for a mandatory stay of proceedings brought in Iceland prior to the Moratorium Order, the English court should do likewise (even though there were no such actual claims in Iceland at the time). The logic of that argument holds good when there is no requirement for a stay in Iceland. As Jefferies point out, the English authorities on assisting insolvencies in foreign jurisdictions are cases where the English court is asked to bring about the same result in this country as in the country where the main insolvency proceedings are taking place or the home state of the insolvent company. That is not what is sought here. To the contrary, Landsbanki is seeking to do better in this country than it could do in Iceland and, having set out to obtain a permanent stay now seeks a temporary stay which seems of little benefit in circumstances where it appears inevitable that the only result will be a delay to Jefferies in pursuing its claim.

Conclusion

[37]Taking all these matters into account, in my judgment I do not have power to stay the proceedings for any period which would have the effect of depriving Jefferies of its right to come to the English courts by virtue of the exclusive jurisdiction clause in the Agreement and the Lugano Convention. Alternatively I should not exercise my powers in that way. Where Lawrence Collins J considered the issue of stay as a matter of judicial discretion, it appears to me that he must have been doing so on a case management basis, as did Beatson J. The factors which each of them took into account were not strong enough or compelling enough for such a stay to be granted in the face of the exclusive jurisdiction clause and the other circumstances of each action. In my judgment Jefferies’ position is even stronger here and I decline to grant the limited application which is now being pursued, with an undertaking of the kind suggested, let alone the much more extensive application originally made.[38]It must follow that Jefferies is entitled to the costs of this application, absent some peculiarities of which I am not aware. Such matters can, if necessary, be the subject of submissions on the handing down of this judgment, along with other consequential issues which arise.

Cited in 16 later judgments

and 7 more of the most senior