Replies to post #109208 on Lehman Brothers Financial SA (LEHNQ)

[cottonisking]

Continue, Defines Issue 2:

In that event, as it appears to the administrators,
25 and we said in our skeleton, the strikeout application
5
1 has no real value anymore, because the only purpose of
2 the strikeout application is to put in play the issues
3 of👉️ estoppel and abuse of process. It may have been
4 relevant had that been dealt with separately, but it has
5 not been dealt with separately.👈️
6 Now, we do take issue, however, with the concept
7 that insofar as there is a good point on estoppel or
8 abuse of process, it could lead to the strikeout of the
9 application itself , because the premise here is it
10 shouldn’t have been brought, and therefore we do have
11 a slight issue about that.
12 Now, there has been a quantity of exchange about
13 this , and the latest exchange, which may not have got
14 under your Lordship’s nose -- maybe it has -- is a note
15 from Deutsche Bank on strikeout, in which there is, if
16 I can call it , a conditional withdrawal of the
17 application .
18 Does your Lordship have that note? It came this
19 morning.
20 MR JUSTICE HILDYARD: I’m feeling a bit shifty about it,
21 actually . I have blinked at it , but I’m not sure I have
22 a copy. Does anyone have a copy that I could have?
23 Thank you. (Handed)
24 MR BELTRAMI: So without interrupting your Lordsh

Resource:

October 9, 2023 Re Lehman Brothers Holdings PLC (In Administration) Day 1
1 MR BELTRAMI: Well, yes. The only -- I wouldn’t even call
2 it a fight -- issue ...
3 MR JUSTICE HILDYARD: It is a gentlemanly disagreement with
4 him.
5 MR BELTRAMI: No, I have no disagreement with Mr Allison or
6 anyone really on the underlying merits of the --
7 MR JUSTICE HILDYARD: Not you, no, because you are the
8 compère, as I say. You are introducing these matters to
9 the court and will abide by the directions I give.
10 MR BELTRAMI: Yes, so far as the directions application is
11 concerned, that’s absolutely right .
12 The only spike on that is the strikeout application ,
13 because as your Lordship is aware, Deutsche Bank, as
14 I mentioned earlier, issued a strikeout application to
15 strike out the directions application .
16 MR JUSTICE HILDYARD: Yes.
17 MR BELTRAMI: And as you will have seen from our skeleton,
18 the administrators’ position is that issues of
19 res judicata and issues of abuse of process are engaged
20 on the directions application . And therefore to the
21 extent that Deutsche Bank have a good point on that, it
22 is a good point in my application, and that is a matter
23 for your Lordship.
24 In that event, as it appears to the administrators,
25 and we said in our skeleton, the strikeout application
5
1 has no real value anymore, because the only purpose of
2 the strikeout application is to put in play the issues
3 of estoppel and abuse of process. It may have been
4 relevant had that been dealt with separately, but it has
5 not been dealt with separately.
6 Now, we do take issue, however, with the concept
7 that insofar as there is a good point on estoppel or
8 abuse of process, it could lead to the strikeout of the
9 application itself , because the premise here is it
10 shouldn’t have been brought, and therefore we do have
11 a slight issue about that.
12 Now, there has been a quantity of exchange about
13 this , and the latest exchange, which may not have got
14 under your Lordship’s nose -- maybe it has -- is a note
15 from Deutsche Bank on strikeout, in which there is, if
16 I can call it , a conditional withdrawal of the
17 application .
18 Does your Lordship have that note? It came this
19 morning.
20 MR JUSTICE HILDYARD: I’m feeling a bit shifty about it,
21 actually . I have blinked at it , but I’m not sure I have
22 a copy. Does anyone have a copy that I could have?
23 Thank you. (Handed)
24 MR BELTRAMI: So without interrupting your Lordship’s
25 reading, the meat of the note is that Deutsche Bank, as
6
1 I understand it, are prepared to withdraw the strikeout
2 application provided no one disagrees that they are able
3 to run their arguments about estoppel or abuse of
4 process within the application itself , within the
5 directions application , which has always been their
6 position.
7 However, as I understand it, the ”provided” hasn’t
8 come through, so there is a sort of challenge being put
9 to Mr Allison here to agree that Deutsche Bank will be
10 able to run those points without the need of a strikeout
11 application as a wrapper, and that hasn’t been -- as
12 I understand it, that confirmation hasn’t been given,
13 and therefore the conditional withdrawal hasn’t -- the
14 condition hasn’t been met. So my current understanding
15 is there is a still a strikeout application on foot
16 before your Lordship in relation to issue 1, and that is
17 an application --
18 MR JUSTICE HILDYARD: This is a question of a piece of
19 paper, is it? It is a question of whether that matter
20 should be dealt with as a preliminary matter, and there
21 is a question of whether it can be at all , given that
22 there is no paper? What is the point here?
23 MR BELTRAMI: Well, the point is this: the application --
24 the underlying theory of the application is LBHI are
25 estopped from arguing their position on issue 1.
7
1 MR JUSTICE HILDYARD: Yes.
2 MR BELTRAMI: We say fine, have a go at that and see how you
3 get on. The procedure that has been brought to that is
4 because they say LBHI are estopped from arguing issue 1,
5 the application notice shouldn’t have been issued,
6 because the application was somehow estopped from
7 getting to the court.
8 MR JUSTICE HILDYARD: Your application.
9 MR BELTRAMI: My application, yes.
10 MR JUSTICE HILDYARD: Right.
11 MR BELTRAMI: So whilst we take no issue on the underlying
12 argument, we do take issue with the suggestion that the
13 application shouldn’t have been made if they are right
14 on the estoppel. Because the answer, if they’re right
15 on the estoppel, is they’re right on the estoppel, and
16 the answer is whatever your Lordship gives, it is not
17 that the application shouldn’t have been made, and we do
18 see that as --
19 MR JUSTICE HILDYARD: Oh, I see.
20 MR BELTRAMI: So that is the issue. We do see that as an
21 unnecessary and unexplained restraint on the
22 administrators’ part to seek the court’s directions if
23 somehow you carve out of the power to seek a direction
24 something which might give rise to an estoppel as
25 a matter of argument.
8
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