“(3) For the purposes of those sections— (a)section 249 of the Insolvency Act 1986 (c.
“(i) whilst no Declared Default exists, all dividends and other distributions paid or payable (in respect of the Group Shares) may be paid directly to the 35 relevant Chargor free from the security created hereunder… (ii) whilst no Declared Default exists, the Security Agent shall use all its reasonable endeavours to forward to the relevant Chargor all material notices, correspondence and/or other communication it receives in relation to the Group Shares; and 31 (iii) subject to Clause 10.2, whilst no Declared Default exists, all voting rights attaching to the relevant Group Shares may be exercised by the relevant Chargor or, where the shares have been registered in the name of the Security Agent or its nominee, as the relevant Chargor may direct in writing, and the Security Agent and any nominee of the 5 Security Agent in whose name such Group Shares are registered shall execute any form of proxy or other document reasonably required in order for the relevant Chargor to do so.”
“Each Chargor hereby authorises the Security Agent…to arrange for the 35 Security Shares to be delivered to any nominee of the Security Agent or to any purchaser or transferee…or registered as the Security Agent may feel appropriate to perfect the security thereover…and each Chargor undertakes from time to time to promptly execute and sign all transfers, contract notes, powers of attorney and other documents…which the Security Agent may 40 reasonably require for perfecting its title to any of the Security Shares…”
“… may at any time after a Declared Default has occurred or in any other instance where the Security Agent is of the reasonable opinion that it is necessary for the avoidance of an Event of Default or necessary for the 32 protection of its material interests … exercise or refrain from exercising (in the name of each Chargor, the registered holder or otherwise and without any further consent or authority from each Chargor and irrespective of any direction given by any Chargor) in respect of the Security Shares any voting rights and any powers or rights under the terms thereof 5 or otherwise which may be exercised by the person or persons in whose name or names the Security Shares are registered or who is the holder thereof … PROVIDED THAT in the absence of notice from the Security Agent each Chargor may and shall continue to exercise any and all voting rights with respect of the 10 Group Shares subject always to the terms hereof. No Chargor shall without the previous consent in writing of the Security Agent exercise the voting rights attached to any of the Group Shares in favour of resolutions having the effect of changing the terms of the Group Shares (or any class of them) or any Related Rights or prejudicing the security hereunder or breaching the terms of 15 any Finance Document, in each case, in any way which could reasonably be expected materially and adversely to affect the interests of the Lenders. Each Chargor hereby irrevocably appoints the Security Agent or its nominee as its proxy to exercise all voting rights so long as the shares remain registered in the name of the relevant Chargor and to the extent that the Security Agent is 20 entitled to exercise such voting rights in accordance with the terms of this Debenture.”
“There are, I think, certain principles which can be deduced from what the 25 parties may be supposed to have contemplated as the commercial purpose of the power to appoint a receiver or manager. The first is that the receiver or manager should have the power to carry on the day-to-day process of realisation and management of the company’s property without interference from the board. As Lord Atkinson said in Moss Steamship Co.Ltd v Whinney 30[1912] AC 254 , 263, the appointment of a receiver: “entirely supersedes the company in the conduct of its business, deprives it of all power to enter into contracts in relation to that business, or to sell, pledge, or otherwise dispose of the property put into the possession, or under the control of the receiver and manager. Its powers in these respects 35 are entirely in abeyance.”
“I cannot accept that the Court of Appeal contemplated some kind of diarchy over all the company’s assets. This would be contrary to principle and wholly impractical. In my judgment the board has during the currency of the 40 receivership no powers over assets in the possession or control of the receiver.”
“26. The character and incidents of such receivers’ agency has 5 been the subject of judicial and extra-judicial consideration. Mr Peter Millett in “The Conveyancing Powers of Receivers After Liquidation” (1977) 41 Conv (NAS) 83, 88 wrote: “the so-called “agency” of the [receivers] is not a true agency, but merely a formula for making the company, rather than the [mortgagee], 10 liable for his acts…”
“The following is what I derive from these cases. (i) In the vast majority of cases, whether a person is entitled to exercise voting rights is 5 to be determined simply by looking at the register of shareholders and the company’s articles of association. (ii) In such cases, it is not permissible to look outside those materials and to enquire whether there are contractual or fiduciary restraints, as between the registered shareholder and others, which inhibit him in 10 exercising those rights. (iii) In general there is no warrant for distinguishing between different degrees of trusteeship. (iv) In such a case control resides in the beneficial owner to the exclusion of the trustee. (v) In the case of a shareholder which is itself a corporation, in determining how its voting rights as shareholders are exercised it is permissible to look outside the register of 15 shareholders and enquire whose voice is heard when its votes are cast.”
“(1) It is a principle of legal policy that, except in relation to procedural matters, changes in the law should not take effect retrospectively. 15 (2) Legislation is retrospective if it alters the legal consequences of things that happened before it came into force.”
“The mere fact that legislation is framed by reference to legal relationships or things that happened before the legislation came into force is not generally thought, of itself, to make the legislation retrospective, and certainly not in an objectionable way. A change in the law is not objectionable merely because it 25 takes note that a past event has happened, and bases new legal consequences upon it.”
“Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a 25 constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the 30 circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.”
“… Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it 20 was not, that Act I understand to be retrospective. That is not this case… there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights. To construe this section I have simply to read it, and, looking at the Act in which it is contained, to say what is its fair meaning.” 25 209. Lord Rodger concluded at [192] of Wilson: “Since provisions which affect existing rights prospectively are not retroactive, the presumption against retroactivity does not apply. Nor is there any general presumption that legislation does not alter the existing legal situation or existing rights: the very purpose of Acts of Parliament is to alter the existing legal situation and this will often 30 involve altering existing rights for the future…. As the sparks fly upward, individuals and businesses run the risk that Parliament may change the law governing their affairs.”
“Although the charges which can be recovered are only those that are incurred after the coming into force of the Bill and the liability to pay Ministers arises only where a compensation payment is made after the coming into force of the Bill, there is an element 49 of retrospectivity in the imposition of the machinery of direct liability on employers. The liability imposed, though only in respect of future charges, is retrospective, as it is a new liability owed directly to Welsh Ministers which arises only by reason of negligence or breach of statutory duty which had occurred prior to the coming into force of the Bill. It is not simply an obligation to make future payments to an employee 5 in respect of a recognised head of damages for an established liability, as would be the case if the machinery adopted had been to impose charges directly on the employees and recovery been obtained from employers. In the case of the employers, prior to the Bill, they would have had no such direct liability to Welsh Ministers. Thus the second aim and effect of 10 the Bill has an element of retrospectivity.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. 15 No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in the general interest or to secure the payment of taxes or other contributions or payments.” 20 232. A1P1 is given force and effect by theHuman Rights Act 1998 (the “1998 Act”). By reason ofs 6(1) of the 1998 Act , it is unlawful for the Regulator, as a public authority, “to act in a way which is incompatible with a Convention right.”
“… the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the 5 other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature’s decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of “manifest 10 unreasonableness”
“It is our view that the connection and association of RHC ceased 20 before the inception of our powers and that for timing purposes set out in the legislation with regards to FSDs we would not be able to issue an FSD in relation to RHC or the applicants. We have therefore concluded that based on the information contained within the application neither a CN nor an FSD is 25 available to the Regulator. We hope that this letter will provide the comfort your client seeks in relation to the events described in the application.”
“ITV plc understands further that RHC and companies in the Carmelite Capital Group also sought clearance from the Pensions 15 Regulator in relation to this matter and that a comfort letter was provided to Clifford Chance LLP in respect of the Scheme. We understand that this comfort letter confirmed that the Pensions Regulator's view is that any act or failure to act pre-dates the inception of the Regulator's powers to issue a Contribution Notice, 20 and that RHC's connection with the Scheme employers ceased before the inception of the Regulator's powers to issue Financial Support Directions.”
“The25 February 2009 letter did not constitute a formal clearance, merely a statement of a view being taken on a matter of law. If, in light of the analysis from Mr Gabriel Moss QC, 5 the Regulator is satisfied that the view offered in February 2009 was or could be incorrect, then it is, in our submission, bound to re-open the issue. This point, as to whether the appointment of administrative receivers puts companies beyond the reach of the Regulator, is 10 significant and needs to be resolved by a Determinations Panel.”
“2.16 The Regulator's current approach to its investigation is not consistent with the principles of fairness or consistency. 5 Box Clever Technology Limited was a joint venture established between Granada and Thorn (and whose shareholdings are presently ultimately owned, respectively, by ITV and Carmelite). We are aware that Carmelite applied for clearance from the Regulator in 10 2009 and that, by letter dated25 February 2009 , the Regulator issued Carmelite with a comfort letter confirming that it did not have jurisdiction to impose a contribution notice or FSD. On the latter point, the Regulator stated expressly: "It is our view that the connection and association of [Carmelite] ceased before the 15 inception of out powers and that for timing purposes set out in the legislation with regards to FSDs we would not be able to issue an FSD [to Carmelite]”. 2.17 ITV agrees with this conclusion, and has obtained an opinion 20 from Leading Counsel to support that view after careful consideration of the relevant documentation and background facts. The Regulator's approach in this investigation is not consistent with its approach to Carmelite. On the issue of jurisdiction, and whether or not ITV is associated with the Employers, precisely the same 25 circumstances apply to ITV as applied to Carmelite. Having reached the conclusion in 2009 that Carmelite was not associated with the Employers so that the Regulator had no jurisdiction to impose an FSD on them, in order to satisfy the principles of fairness and consistency, the Regulator must either reach the same 30 conclusion for ITV, or must withdraw its comfort to Carmelite and open an investigation into them as well.”
“The comfort letter set out the Regulator's view of the correct interpretation of the law as at February 2009. However, having considered the various opinions on the question of association, the Regulator's view is now such that we consider that the threshold 45 test is met in these circumstances. 61 The principles of fairness and consistency do not require a public authority to be forever bound to a particular interpretation of the law. The Regulator does not consider that the comfort 5 letter binds it in the consideration of its functions in relation to ITV. As the comfort letter was not issued to ITV, the letter does not provide your client with any expectation of any particular treatment by the Regulator. 10 The use of powers (or not) in relation to Rental Holding Company Limited is confidential, and we will not discuss the exercise of regulatory functions against that company with your client.”
“39. In my view, the fact that one party (A) has made a request for more favourable treatment and another party (B) has not done so will rarely amount to a good reason for not treating 5 them as being in a relevantly comparable position for the purposes of equal treatment if they are in fact otherwise in relevantly comparable positions. Take the present case. TMR and the appellants were, as a matter of fact, in relevantly comparable positions. … The fact 10 that TMR (unlike the others) raised the issue of the effect on its position of a successful third party appeal was immaterial to the comparability of their positions.”
“… It was accepted that the question whether there was objective justification for the less favourable treatment of the appellants as compared with TMR depended on whether the difference in treatment was fair in all the circumstances. Mr Beard [counsel for 30 the OFT] accepted that the fact that a decision by a public authority is mistaken is not a trump card which will always carry the day so as to permit the authority not to replicate the mistake regardless of the circumstances. For the appellants, it was accepted that the question is whether there has been unfairness on the part of the 35 authority having regard to all the circumstances. The fact that there has been a mistake may be an important circumstance. It may be decisive. It all depends.”
“The parties intend that the Box Clever Group should be self-financing and should obtain additional funds from third parties without recourse to its Shareholders. 15 Subject to any contrary agreement, no shareholder shall be obliged to contribute to the working capital or other financial requirements of the Company, whether by further subscription per shares, by loans, by guarantee or otherwise.”
“I can confirm that we have received your completed option form indicating that you wish to become a member of the Scheme as from1 October 2001 . This means that your Pensionable Service is treated as continuous from the date you first 25 joined the Granada pension scheme; from1 October 2001 you will continue to pay contributions and earn future pension on exactly the same basis as you would have done had you remained in the Granada pension scheme.”
“… The directors acknowledge that market conditions and fundamental strategy have changed significantly since the preparation of the Sizzle model. The decline 10 in the rental market has accelerated and Box Clever has not achieved an improvement in market share. The directors have now accepted that this is unlikely in the longer term and that the market for rental TV products is in terminal decline.”
“Mr Giffin QC [counsel for the PPF]…prefaced his oral submissions on the point, however, by stressing that his argument was not that it can never be appropriate for trustees to have regard to the existence of the PPF. He accepted, for example, 30 that it might be perfectly proper for trustees to have regard to the PPF in deciding whether, or when, to bring about a qualifying insolvency event, as part of the planning for an orderly running down of an under-funded scheme. Similarly, it would plainly be relevant for trustees to consider whether an action they were otherwise minded to take might render the scheme ineligible for entry into the 35 PPF… Mr Giffin submitted, and I would agree, that there is no single all-purpose answer to the question whether the PPF is a relevant consideration for trustees to take into account. It all depends on the context and purpose of the particular power which the trustees are proposing to exercise, and the particular way in which they wish to take the PPF into account.” 40 567. At [119], having held that taking into account the availability of compensation under the PPF would be unlawful in the circumstances of the case before him, he went on to say: 135 “Further than that I would not, at present, go, bearing in mind that the existence of the PPF is in certain contexts a legitimate matter for trustees to take into account, and the dangers of invoking public policy in relation to a situation which is not before the court. I would, however, say that if my conclusion in the present case is soundly based, I would expect a similar approach to be adopted 5 in any instance where trustees seek to take advantage of the existence of the PPF as a justification for acting in a way which would otherwise be improper.”