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Health and care inquests - Resource library Supporting you when dealing with health and care inquests. Most litigators would agree that this is an important issue where further clarification of the law would be helpful when the full appeal hearing finally comes before the Court of Appeal. There are a number of issues that the Court of Appeal will be able to consider, such as the interplay between different causes of action on largely the same facts. In the long term this may reduce the amount of litigation arising out of broadly similar facts.

Read more articles. Clarkslegal Online. Legal Updates Fresh proceedings on same facts - two bites of the cherry? Conclusions Most litigators would agree that this is an important issue where further clarification of the law would be helpful when the full appeal hearing finally comes before the Court of Appeal. For further information about this or any other Dispute Resolution matter please contact Clarkslegal's dispute resolution team by email at disputeresolution clarkslegal.

Disclaimer This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website. The rule in Cherry v Boultbee the "Rule" had all but disappeared from reported cases in this jurisdiction for more than half a century until when it was revived in the Court of Appeal, with potentially dramatic consequences for those within the sphere of influence of insolvent companies.

Last month, two more cases bolstered the rather obscure Rule's new lease of life. The Rule is sometimes referred to as a "right of quasi-retainer", or alternatively the "fund ascertainment principle". It can be briefly summarised as the principle that no one should be admitted to share in the distribution of a fund until he has discharged his obligation to contribute to the fund. At first sight, the principle looks similar to a right of set-off, but it is not.

The Rule can only apply where there is no set-off, because where set-off such as insolvency set-off applies, the Rule is displaced. Effect is given to the general rule, as a matter of accounting, by treating the fund as notionally increased by the amount of the contribution; determining the amount of the share by applying the appropriate proportion to the notionally increased fund and distributing to the claimant the amount of the share so determined less the amount of the contribution It is not necessary that the liability to Y has been satisfied out of the fund: it is enough that it may have to be satisfied in the future Funding submitted a proof for its debt in KSF's administration.

The rule against double proof prevented KSF from setting off its indemnity claim against Funding which arose from its guarantee of Funding's liability to the Trustee in accordance with the usual insolvency set-off rules.

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Turkey’s Two Bites at a Cherry: Erdoğan or Democracy

KSF's Administrators gave notice under r. In that event, KSF's fund of assets available for distribution to creditors would be notionally increased by the amount of the debt contingently due by Funding to KSF, but the dividend calculated on the notionally increased fund due from KSF to Funding would be reduced by the same amount see the method described in 1 above. Funding had no significant creditors other than the Trustee, who stood to lose the ability to recoup a significant part of its debt if Funding's dividend was reduced by the Rule.

It was in the Trustee's interests to establish that the Rule had been excluded or should be applied differently.


  • have two bites of the cherry.
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  • No. 7: Traumes-Wirren.

Bound by the method of application settled by the Court of Appeal in SSSL for the purposes of the High Court hearing , the Trustee therefore sought to argue that the non-compete clause contained in the finance documents excluded the application of the Rule.

The Chancellor held that while an express reference to the Rule was not required to exclude it, a clear intention had to be demonstrated in the wording of the contract. He then went through the non-compete clause, bit by bit, taking a literal interpretative approach to the meaning of the words and the legal characteristics of the Rule, and concluded that the relevant non-compete clause did not evidence a clear intention by the parties to exclude the operation of the Rule.

TWO BITES AT A CHERRY WITH OTHER TALES | Thomas Bailey Aldrich | First edition

The Cattles case involved a group of companies that was seeking to restructure its finances. In order to do so, it became necessary to establish certain creditors' entitlements if the group companies were to go into insolvent liquidation. As with Mills , the case involved a parent and its subsidiary, various banking facilities, and some notes and bonds, some of which had been guaranteed by various group members. Also as in Mills , the parties considered themselves bound by the SSSL interpretation of the Rule, at least in the hearing before the High Court, and so they, too, sought to establish whether the various non-compete clauses contained in the several finance documents excluded the operation of the Rule.

The Judge's finding on this point was obiter but he thought it appropriate to give reasons for the purposes of a subsequent appeal. Cooke HHJ, differing from the Chancellor's approach in Mills whose judgment was published after Cattles , took a more commercial view of the parties' intention as evidenced by the non-compete clauses and decided that the parties had effectively ousted the application of the Rule.

The approaches taken to contractual interpretation by the two judges in Cattles and Mills are completely different: the literal approach of the Chancellor in Mills contrasts with HHJ Cooke's commercial approach in Cattles. Obviously arguments relating to contractual interpretation depend upon the drafting of a particular clause, and so neither case can provide an exact answer to other cases unless an identical clause is being considered. However, an appeal to settle the correct approach to contractual interpretation in these circumstances is highly desirable in the interests of establishing some certainty, especially as the current economic climate is likely to produce more corporate insolvencies where the argument of whether the Rule has been excluded or not will be repeated.

As in these two cases, and in SSSL before them, the effect of applying the Rule often produces big winners and losers. The issue is not likely to go away. The other interesting aspect of any appeal will be the opportunity to review the Court of Appeal's finding in SSSL on how the Rule should be applied, particularly with respect to the amount of an indemnity liability contribution that is required to be brought into account where the guarantor is insolvent.

As SSSL was a Court of Appeal decision, a "leapfrog" appeal to the Supreme Court will be necessary, and we understand that leave to apply for such an appeal has been given. We further understand that permission to appeal was also given in Cattles.


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