Key Points

  • Circumstances did not justify there being no order made against Sequana
  • Sequana liable up to the amount of the May dividend
  • Stay of execution granted in the circumstances

This decision follows on from the judgment in BTI v Sequana from July last year (see our December update for a summary of the facts). It relates to the relief to be granted in favour of BAT in respect of a dividend declared by AWA shortly before AWA was sold by Sequana. The dividend was held to be a transaction to defraud creditors, the only aspect of the original claim which succeeded.

Sequana argued that because so much had transpired after the sale of AWA in respect of the liability of AWA to BAT (over which it had no control), there should be no order made against Sequana. Alternatively it argued that liability should be limited to amounts payable by AWA under a funding agreement put in place between, amongst others, AWA and BAT.

Decision

The judge noted firstly that the court has a wide discretion in relation to the orders it can make but that the overriding objective was to protect the interests of victims of the transaction. While the court is able to make no order, in this case the judge held that to do so would be unjust given that Sequana’s lack of control and change of position was part and parcel of its desire to remove AWA’s liability from the group. The court also rejected Sequana’s alternative position and instead accepted BAT’s position that Sequana pay a lump sum representing costs incurred by BAT to date and be obliged to meet further costs up to the value of the May dividend.

Comment

The judgment is useful guidance regarding possible orders which may be made in relation to office holder claims (and also looks at issues such as interest and currency conversion) although of course each matter will turn on its own facts. Both parties were granted a right of appeal and Sequana was also granted a stay of execution pending appeal given its financial position and the likelihood that any appeal would be stifled should a stay not be granted.

BTI 2014 LLC v Sequana [2017] EWHC 211 (Ch)