In approving the insurance business transfer scheme in this case, Henderson J noted prior authority to the effect that "it is not the function of the court to ensure that the Scheme is in every respect the best which could have been devised. The parties are entitled to design the scheme which suits their commercial objectives, and the task of the court is then to consider whether the scheme before it is fair". Here, one of the central features of the scheme was to replace the disparate protections currently available to policyholders. Provided that the terms used are fair to all concerned, there was no reason for the court to withhold its approval.
A further point was that legal advice had been obtained from a QC at one point to answer various issues connected to the scheme. The independent expert had referred to this advice in his report but did not attach or exhibit it (presumably because of confidentiality/privilege concerns). The judge was critical of that approach: "In the interests of transparency… it is important that all significant material upon which an independent expert relies in evaluating a scheme and reaching his conclusions should (where reasonably possible) be available for review by the court and interested parties". However, the position would be different if the expert had taken legal advice regarding some aspect of his task. The judge also accepted that "different considerations may well apply to the disclosure of material which is commercially sensitive, including regulatory information of a sensitive nature whether provided to, or produced by, the regulators".