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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Cimolai SpA & Anor, Re [2023] EWHC 2193 (Ch) (25 August 2023) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2023/2193.html Cite as: [2023] EWHC 2193 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
IN THE MATTER OF CIMOLAI SPA
AND IN THE MATTER OF LUIGI CIMOLAIU HOLDING SPA
AND IN THE MATTER OF THE COMPANIES ACT 2006
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
IN THE MATTER OF CIMOLAI SPA | ||
-and - | ||
AND IN THE MATTER OF LUIGI CIMOLAIU HOLDING SPA |
____________________
Hearing date: 25th August 2023
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Crown Copyright ©
Mr Justice Trower:
"The relevant questions for the court at the sanction hearing can therefore be summarised as follows:
i) Has there been compliance with the statutory requirements?
ii) Was the class fairly represented and did the majority act in a bona fide manner and for proper purposes when voting at the class meeting?
iii) Is the scheme one that an intelligent and honest man, acting in respect of his interests, might reasonably approve?
iv) Is there some other 'blot' or defect in the scheme?
In the case of a scheme with international elements, there is also the question of whether the court will be acting in vain if it sanctions the scheme. This requires some consideration of whether the scheme will be recognised and given effect in other relevant jurisdictions."
"I accept the point made by Mr Dicker that if a judge has heard full argument at the convening hearing and has decided on the appropriate constitution of classes, it is not ordinarily appropriate for a different judge at the sanction hearing to take a different view of his own motion in the absence of any creditor appearing to contend that the classes were not correctly constituted."
"For the purposes of this section 'the relevant alternative' is whatever the court considers would be most likely to occur in relation to the company if the compromise or arrangement were not sanctioned under section 901F."
"The 'no worse off' test can be approached, first, by identifying what would be most likely to occur in relation to the Plan Companies if the Plans were not sanctioned; second, determining what would be the outcome or consequences of that for the members of the dissenting classes (primarily, but not exclusively in terms of their anticipated returns on their claims); and third, comparing that outcome and those consequences with the outcome and consequences for the members of the dissenting classes if the Plans are sanctioned."
"It is important to appreciate that under the first stage of this approach, the Court is not required to satisfy itself that a particular alternative would definitely occur. Nor is the Court required to conclude that it is more likely than not that a particular alternative outcome would occur. The critical words in the section are what is 'most likely' to occur. Thus, if there were three possible alternatives, the court is required only to select the one that is more likely to occur than the other two."