ESI 1 v ESI 2 - Initial Hearing 01-02/09/2020, Court of Appeal 17/09/2020 (p127)

Cafc43v3r said:

bobmunro said:

Cafc43v3r said:

MattF said:

Covered_End_Lad said:

MattF said:

So in a theoretical scenario where the leave to appeal is granted and an injunction until the end of November is put in place, if we become extinct as a result how would that reflect on the courts? Do they worry about perceived publicity in such cases?

That is what the balance of convenience was about. The judge took the view that a full injunction had a material risk of meaning the club would be kicked out the league.

Would a statement from the EFL outlining the progression of sanctions then solidify the risk if a sale cannot be completed?

As I understand it the injunction was refused on the grounds that granting it would cause more harm to Panarama than not granting it would cause to LD. 

In the final battle in court it will be does/did Elliott have an agreement that ment the sale to a third party would be a breach of contract.  His ability to run the company, pass EFL tests etc don't matter. In the law.

Does anyone know of any case law where a judge has ruled "I agree your legally allowed to own something but I won't let you because......".

There will be many, I'm sure, where a legally binding contract has not been fulfilled to avoid, on balance, a significantly worse outcome. Exactly the reasons why Judge Pearce found in PM's favour.

In those cases legal redress is damages for breach of contract rather than forcing the contract to be enacted. 

But wouldn't a "significantly worse" outcome have to be based on law?

A judge can't guess what Elliott's intentions are if he was owner?  Even if the EFL provided evidence that the club would be expelled on Elliott taking control wouldn't that be a separate issue, not between Panorama and LD? 

Richard J said:

Covered End said:

I'm slightly concerned that LD's QC & legal team will be working on this vigorously and could have a fair sized amount of people assisting.

I've attended cases where residents & the council have been up against property developers and their QC.
The QC's whilst usually outstanding also have so many people to assist them.

I am concerned as to who is providing our evidence.
Is it solely down to Lauren & MM?
Does Lauren have the time or is she working on other business (as you may well expect with this unexpected development).

I know some people have said that the level/quality of your legal team makes no difference, but this is clearly nonsense as otherwise everyone would appoint the cheapest representation.

Lauren has done an excellent job and I'm not suggesting otherwise, but I am concerned as to the resources that LD are throwing at this and I've seen for myself that some QCs can almost prove that black is actually white.

Agree with this up to a point. I once was on a Jury at the Old Bailey for a murder trial and the defendents Silk made me genuinely question the outcome although it was pretty open and shut. 

My point about legal representation was that it didn't alter the facts of the case and Lauren clearly understood them probably better than her opponent.

That evened the dynamic in my view. 

Jints said:

Covered End said:

I'm slightly concerned that LD's QC & legal team will be working on this vigorously and could have a fair sized amount of people assisting.

I've attended cases where residents & the council have been up against property developers and their QC.
The QC's whilst usually outstanding also have so many people to assist them.

I am concerned as to who is providing our evidence.
Is it solely down to Lauren & MM?
Does Lauren have the time or is she working on other business (as you may well expect with this unexpected development).

I know some people have said that the level/quality of your legal team makes no difference, but this is clearly nonsense as otherwise everyone would appoint the cheapest representation.

Lauren has done an excellent job and I'm not suggesting otherwise, but I am concerned as to the resources that LD are throwing at this and I've seen for myself that some QCs can almost prove that black is actually white.

I imagine you are thinking of planning inquiries and the like and agree with you that local authoity v property developer resources are often unbalanced. BUt this doesn't really apply in the Court of Appeal. In a planning inquiry, there will be lots of expert evidence (from planners, heritage experts, property valuers, environmental specialists etc). They often take a week or more to get through and require a lot if preparation from a lot of people. Court of Appeal hearings are limited to points of law and are usually for one or two days. There is no new factual evidence and no expert evidence. It is very much one barrister versus another, although solicitor support can be important.

Cafc43v3r said:

bobmunro said:

Cafc43v3r said:

MattF said:

Covered_End_Lad said:

MattF said:

So in a theoretical scenario where the leave to appeal is granted and an injunction until the end of November is put in place, if we become extinct as a result how would that reflect on the courts? Do they worry about perceived publicity in such cases?

That is what the balance of convenience was about. The judge took the view that a full injunction had a material risk of meaning the club would be kicked out the league.

Would a statement from the EFL outlining the progression of sanctions then solidify the risk if a sale cannot be completed?

As I understand it the injunction was refused on the grounds that granting it would cause more harm to Panarama than not granting it would cause to LD. 

In the final battle in court it will be does/did Elliott have an agreement that ment the sale to a third party would be a breach of contract.  His ability to run the company, pass EFL tests etc don't matter. In the law.

Does anyone know of any case law where a judge has ruled "I agree your legally allowed to own something but I won't let you because......".

There will be many, I'm sure, where a legally binding contract has not been fulfilled to avoid, on balance, a significantly worse outcome. Exactly the reasons why Judge Pearce found in PM's favour.

In those cases legal redress is damages for breach of contract rather than forcing the contract to be enacted. 

But wouldn't a "significantly worse" outcome have to be based on law?

A judge can't guess what Elliott's intentions are if he was owner?  Even if the EFL provided evidence that the club would be expelled on Elliott taking control wouldn't that be a separate issue, not between Panorama and LD? 

LargeAddick said:

Jints said:

Covered End said:

I'm slightly concerned that LD's QC & legal team will be working on this vigorously and could have a fair sized amount of people assisting.

I've attended cases where residents & the council have been up against property developers and their QC.
The QC's whilst usually outstanding also have so many people to assist them.

I am concerned as to who is providing our evidence.
Is it solely down to Lauren & MM?
Does Lauren have the time or is she working on other business (as you may well expect with this unexpected development).

I know some people have said that the level/quality of your legal team makes no difference, but this is clearly nonsense as otherwise everyone would appoint the cheapest representation.

Lauren has done an excellent job and I'm not suggesting otherwise, but I am concerned as to the resources that LD are throwing at this and I've seen for myself that some QCs can almost prove that black is actually white.

I imagine you are thinking of planning inquiries and the like and agree with you that local authoity v property developer resources are often unbalanced. BUt this doesn't really apply in the Court of Appeal. In a planning inquiry, there will be lots of expert evidence (from planners, heritage experts, property valuers, environmental specialists etc). They often take a week or more to get through and require a lot if preparation from a lot of people. Court of Appeal hearings are limited to points of law and are usually for one or two days. There is no new factual evidence and no expert evidence. It is very much one barrister versus another, although solicitor support can be important.

isn't it the case though that there is likely no actual hearing just the appointed Judge reviewing the documentary evidence and submissions?

LargeAddick said:

Jints said:

LargeAddick said:

Jints said:

Covered End said:

I'm slightly concerned that LD's QC & legal team will be working on this vigorously and could have a fair sized amount of people assisting.

I've attended cases where residents & the council have been up against property developers and their QC.
The QC's whilst usually outstanding also have so many people to assist them.

I am concerned as to who is providing our evidence.
Is it solely down to Lauren & MM?
Does Lauren have the time or is she working on other business (as you may well expect with this unexpected development).

I know some people have said that the level/quality of your legal team makes no difference, but this is clearly nonsense as otherwise everyone would appoint the cheapest representation.

Lauren has done an excellent job and I'm not suggesting otherwise, but I am concerned as to the resources that LD are throwing at this and I've seen for myself that some QCs can almost prove that black is actually white.

I imagine you are thinking of planning inquiries and the like and agree with you that local authoity v property developer resources are often unbalanced. BUt this doesn't really apply in the Court of Appeal. In a planning inquiry, there will be lots of expert evidence (from planners, heritage experts, property valuers, environmental specialists etc). They often take a week or more to get through and require a lot if preparation from a lot of people. Court of Appeal hearings are limited to points of law and are usually for one or two days. There is no new factual evidence and no expert evidence. It is very much one barrister versus another, although solicitor support can be important.

isn't it the case though that there is likely no actual hearing just the appointed Judge reviewing the documentary evidence and submissions?

Yes - for consideration by a single judge of the application for permission to appeal. 

If permission is granted, then there will be a hearing before 3 judges with both barristers presenting their arguments. 

which would likely be after the November hearing?

Jints said:

LenGlover said:

Cafc43v3r said:

bobmunro said:

Cafc43v3r said:

MattF said:

Covered_End_Lad said:

MattF said:

So in a theoretical scenario where the leave to appeal is granted and an injunction until the end of November is put in place, if we become extinct as a result how would that reflect on the courts? Do they worry about perceived publicity in such cases?

That is what the balance of convenience was about. The judge took the view that a full injunction had a material risk of meaning the club would be kicked out the league.

Would a statement from the EFL outlining the progression of sanctions then solidify the risk if a sale cannot be completed?

As I understand it the injunction was refused on the grounds that granting it would cause more harm to Panarama than not granting it would cause to LD. 

In the final battle in court it will be does/did Elliott have an agreement that ment the sale to a third party would be a breach of contract.  His ability to run the company, pass EFL tests etc don't matter. In the law.

Does anyone know of any case law where a judge has ruled "I agree your legally allowed to own something but I won't let you because......".

There will be many, I'm sure, where a legally binding contract has not been fulfilled to avoid, on balance, a significantly worse outcome. Exactly the reasons why Judge Pearce found in PM's favour.

In those cases legal redress is damages for breach of contract rather than forcing the contract to be enacted. 

But wouldn't a "significantly worse" outcome have to be based on law?

A judge can't guess what Elliott's intentions are if he was owner?  Even if the EFL provided evidence that the club would be expelled on Elliott taking control wouldn't that be a separate issue, not between Panorama and LD? 

I'm no lawyer but for those that are could there be a possibility of 'lifting the corporate veil' if the Club faced expulsion on community or common good grounds?

I know that in Company Law judges are loath to lift the corporate veil other than exceptional or fraudulent circumstances but the demise of a 115 year old football club must be unusual at the very least.

Not sure why the corporate veil would be relevant here. Ellott's intentions as sole owner of LD would be evidence of what LD's intentions are. As far as I can see the only question relevant for the Court of appeal is whether LD's interest can only be protected by an injunction preventing the sale of the club rather than the award of damages should LD be correct in arguing that it owns the club. 

In any event there have been hundreds of cases on the lifting of the corporate veil going back 150 years and common good has never been held as a basis for lifting. In the last Supreme Court decision on the CV in 2013, Lord Sumption said: 

34. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement. It is not an abuse to cause a legal liability to be incurred by the company in the first place. It is not an abuse to rely upon the fact (if it is a fact) that a liability is not the controller’s because it is the company’s. On the contrary, that is what incorporation is all about…

35. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company’s separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil… 

LenGlover said:

Jints said:

LenGlover said:

Cafc43v3r said:

bobmunro said:

Cafc43v3r said:

MattF said:

Covered_End_Lad said:

MattF said:

So in a theoretical scenario where the leave to appeal is granted and an injunction until the end of November is put in place, if we become extinct as a result how would that reflect on the courts? Do they worry about perceived publicity in such cases?

That is what the balance of convenience was about. The judge took the view that a full injunction had a material risk of meaning the club would be kicked out the league.

Would a statement from the EFL outlining the progression of sanctions then solidify the risk if a sale cannot be completed?

As I understand it the injunction was refused on the grounds that granting it would cause more harm to Panarama than not granting it would cause to LD. 

In the final battle in court it will be does/did Elliott have an agreement that ment the sale to a third party would be a breach of contract.  His ability to run the company, pass EFL tests etc don't matter. In the law.

Does anyone know of any case law where a judge has ruled "I agree your legally allowed to own something but I won't let you because......".

There will be many, I'm sure, where a legally binding contract has not been fulfilled to avoid, on balance, a significantly worse outcome. Exactly the reasons why Judge Pearce found in PM's favour.

In those cases legal redress is damages for breach of contract rather than forcing the contract to be enacted. 

But wouldn't a "significantly worse" outcome have to be based on law?

A judge can't guess what Elliott's intentions are if he was owner?  Even if the EFL provided evidence that the club would be expelled on Elliott taking control wouldn't that be a separate issue, not between Panorama and LD? 

I'm no lawyer but for those that are could there be a possibility of 'lifting the corporate veil' if the Club faced expulsion on community or common good grounds?

I know that in Company Law judges are loath to lift the corporate veil other than exceptional or fraudulent circumstances but the demise of a 115 year old football club must be unusual at the very least.

Not sure why the corporate veil would be relevant here. Ellott's intentions as sole owner of LD would be evidence of what LD's intentions are. As far as I can see the only question relevant for the Court of appeal is whether LD's interest can only be protected by an injunction preventing the sale of the club rather than the award of damages should LD be correct in arguing that it owns the club. 

In any event there have been hundreds of cases on the lifting of the corporate veil going back 150 years and common good has never been held as a basis for lifting. In the last Supreme Court decision on the CV in 2013, Lord Sumption said: 

34. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement. It is not an abuse to cause a legal liability to be incurred by the company in the first place. It is not an abuse to rely upon the fact (if it is a fact) that a liability is not the controller’s because it is the company’s. On the contrary, that is what incorporation is all about…

35. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company’s separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil… 

I was responding to a comment that the dispute was between Panorama Magic and Lex Dominus so Charlton being 'collateral damage' would be irrelevant.

As I say I'm not a lawyer so perhaps I should have said substance over form rather than corporate veil.

What I'm essentially trying to say, badly, is that is there anyway Charlton Athletic and its welfare will be prioritised over the interests of these shysters and their shell companies?

LenGlover said:

Jints said:

LenGlover said:

Cafc43v3r said:

bobmunro said:

Cafc43v3r said:

MattF said:

Covered_End_Lad said:

MattF said:

So in a theoretical scenario where the leave to appeal is granted and an injunction until the end of November is put in place, if we become extinct as a result how would that reflect on the courts? Do they worry about perceived publicity in such cases?

That is what the balance of convenience was about. The judge took the view that a full injunction had a material risk of meaning the club would be kicked out the league.

Would a statement from the EFL outlining the progression of sanctions then solidify the risk if a sale cannot be completed?

As I understand it the injunction was refused on the grounds that granting it would cause more harm to Panarama than not granting it would cause to LD. 

In the final battle in court it will be does/did Elliott have an agreement that ment the sale to a third party would be a breach of contract.  His ability to run the company, pass EFL tests etc don't matter. In the law.

Does anyone know of any case law where a judge has ruled "I agree your legally allowed to own something but I won't let you because......".

There will be many, I'm sure, where a legally binding contract has not been fulfilled to avoid, on balance, a significantly worse outcome. Exactly the reasons why Judge Pearce found in PM's favour.

In those cases legal redress is damages for breach of contract rather than forcing the contract to be enacted. 

But wouldn't a "significantly worse" outcome have to be based on law?

A judge can't guess what Elliott's intentions are if he was owner?  Even if the EFL provided evidence that the club would be expelled on Elliott taking control wouldn't that be a separate issue, not between Panorama and LD? 

I'm no lawyer but for those that are could there be a possibility of 'lifting the corporate veil' if the Club faced expulsion on community or common good grounds?

I know that in Company Law judges are loath to lift the corporate veil other than exceptional or fraudulent circumstances but the demise of a 115 year old football club must be unusual at the very least.

Not sure why the corporate veil would be relevant here. Ellott's intentions as sole owner of LD would be evidence of what LD's intentions are. As far as I can see the only question relevant for the Court of appeal is whether LD's interest can only be protected by an injunction preventing the sale of the club rather than the award of damages should LD be correct in arguing that it owns the club. 

In any event there have been hundreds of cases on the lifting of the corporate veil going back 150 years and common good has never been held as a basis for lifting. In the last Supreme Court decision on the CV in 2013, Lord Sumption said: 

34. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement. It is not an abuse to cause a legal liability to be incurred by the company in the first place. It is not an abuse to rely upon the fact (if it is a fact) that a liability is not the controller’s because it is the company’s. On the contrary, that is what incorporation is all about…

35. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company’s separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil… 

I was responding to a comment that the dispute was between Panorama Magic and Lex Dominus so Charlton being 'collateral damage' would be irrelevant.

As I say I'm not a lawyer so perhaps I should have said substance over form rather than corporate veil.

What I'm essentially trying to say, badly, is that is there anyway Charlton Athletic and its welfare will be prioritised over the interests of these shysters and their shell companies?

LenGlover said:

Scratchingvalleycat said:

No.1 in South London said:

Whoever drew up the contract between LD & PM and whoever advised anyone to sign it, should be in court for professional negligence. It shouldn't be this difficult to work out if the terms of that contract have been met................ absolute shambles.

I seem to recall that it was the lawyer to both Panorama Magic and Lux Dominus who will have drafted the contract. At the time of drafting he appears to have been the owner of Lux Dominus and the Lawyer to CAFC This position appears to have continued  until after he sold Lux Dominus to PE. If PE signed the contract with PM  (which appears to be undated ) he may not have been a director of LD at the time but of course the former owner may have given him authority to sign. Seemingly unprofessional behaviur by a solicitor

Any chance of invalidating the sale of so-called ES1 to ES2 on a technicality if it can be proved that Farnell acted improperly?

Cafc43v3r said:

Jints said:

LenGlover said:

Jints said:

LenGlover said:

Cafc43v3r said:

bobmunro said:

Cafc43v3r said:

MattF said:

Covered_End_Lad said:

MattF said:

So in a theoretical scenario where the leave to appeal is granted and an injunction until the end of November is put in place, if we become extinct as a result how would that reflect on the courts? Do they worry about perceived publicity in such cases?

That is what the balance of convenience was about. The judge took the view that a full injunction had a material risk of meaning the club would be kicked out the league.

Would a statement from the EFL outlining the progression of sanctions then solidify the risk if a sale cannot be completed?

As I understand it the injunction was refused on the grounds that granting it would cause more harm to Panarama than not granting it would cause to LD. 

In the final battle in court it will be does/did Elliott have an agreement that ment the sale to a third party would be a breach of contract.  His ability to run the company, pass EFL tests etc don't matter. In the law.

Does anyone know of any case law where a judge has ruled "I agree your legally allowed to own something but I won't let you because......".

There will be many, I'm sure, where a legally binding contract has not been fulfilled to avoid, on balance, a significantly worse outcome. Exactly the reasons why Judge Pearce found in PM's favour.

In those cases legal redress is damages for breach of contract rather than forcing the contract to be enacted. 

But wouldn't a "significantly worse" outcome have to be based on law?

A judge can't guess what Elliott's intentions are if he was owner?  Even if the EFL provided evidence that the club would be expelled on Elliott taking control wouldn't that be a separate issue, not between Panorama and LD? 

I'm no lawyer but for those that are could there be a possibility of 'lifting the corporate veil' if the Club faced expulsion on community or common good grounds?

I know that in Company Law judges are loath to lift the corporate veil other than exceptional or fraudulent circumstances but the demise of a 115 year old football club must be unusual at the very least.

Not sure why the corporate veil would be relevant here. Ellott's intentions as sole owner of LD would be evidence of what LD's intentions are. As far as I can see the only question relevant for the Court of appeal is whether LD's interest can only be protected by an injunction preventing the sale of the club rather than the award of damages should LD be correct in arguing that it owns the club. 

In any event there have been hundreds of cases on the lifting of the corporate veil going back 150 years and common good has never been held as a basis for lifting. In the last Supreme Court decision on the CV in 2013, Lord Sumption said: 

34. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement. It is not an abuse to cause a legal liability to be incurred by the company in the first place. It is not an abuse to rely upon the fact (if it is a fact) that a liability is not the controller’s because it is the company’s. On the contrary, that is what incorporation is all about…

35. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company’s separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil… 

I was responding to a comment that the dispute was between Panorama Magic and Lex Dominus so Charlton being 'collateral damage' would be irrelevant.

As I say I'm not a lawyer so perhaps I should have said substance over form rather than corporate veil.

What I'm essentially trying to say, badly, is that is there anyway Charlton Athletic and its welfare will be prioritised over the interests of these shysters and their shell companies?

See what you mean. Certainly the judge at the first instance thought it was relevant. The dispute is about ownership of an "asset" (i.e. CAFC). If the grant of an injunction would destroy the value of the asset by the time of the hearing in November to decide ownership, that would surely be highly relevant to what is described in legal terms as the "balance of convenience". In basic terms, the  court will weigh the likely inconvenience or damage which would be suffered by the LD if the injunction is not granted against the likely inconvenience or cost for Panorama if it is.

That is only relevant to the granting of the injunction isn't it?

It wouldn't be relevant to the fact that LD either legally own the shares or have a legally binding contract that PM can't sell to a third party?  They either have or haven't. 

A judge isn't going to say you have but I am going to over rule it on the grounds you won't have the "assets" best interest at heart?