CB&I UK Ltd, Re

In restructuring-plan proceedings, disclosure is governed by a pragmatic and proportionate approach. The court considers the information already provided, the likely materiality of the request to the sanction hearing, alternative sources, urgency and available resources. An expert’s assertion that information is required does not determine the issue; the applicant must show real materiality to matters likely to be decided.

An order under CPR 35.9 requiring a party to compile information is unusual. It is generally inappropriate where production would be onerous, the information is evaluative or forward-looking, and there is no serious imbalance of information.

The court may revise a sanction-hearing timetable where the existing estimate is insufficient. It must balance the urgency of the restructuring against procedural fairness to affected creditors.

CB&I UK Ltd was promoting a restructuring plan under Part 26A of the Companies Act 2006. The LC Ad Hoc Group sought disclosure, or alternatively production of a document under CPR 35.9, concerning the Top 25 Contracts. Reficar separately sought a longer timetable for the sanction hearing, contending that the existing allocation of one day’s pre-reading and four hearing days was insufficient.

The applications followed a convening hearing on 28 September 2023, at which meetings were ordered and an expedited sanction hearing was listed. The central issues were whether further information should be ordered for the creditors’ analysis and whether the sanction-hearing timetable fairly allowed the issues, evidence and expert valuation material to be examined.

1. LC Ad Hoc Group application. The application for specific disclosure under CPR 31.12 and, alternatively, production of information under CPR 35.9 was refused. Part 8 restructuring proceedings require a pragmatic approach. The court is not required to order information merely because an expert says that it is wanted.
2. Relevant considerations included the amount of information already provided, its likely materiality to the real issues at the sanction hearing, other available sources, urgency and the resources available to deal with the proceedings. The information supplied to Grant Thornton had been placed in the data room, together with further material. The applicants had not shown with sufficient precision that the requested information was really material to the relevant alternative or the broader liquidity issues.
3. The request had, in substance, become an application for the Plan Company to compile further information rather than disclose existing documents. Such an order under CPR 35.9 is unusual. The requested material was onerous to assemble, widely dispersed and substantially concerned forward-looking matters involving judgment or evaluation. There was no serious information imbalance because the opposing creditors’ experts had access to the material provided to the Plan Company’s experts, and more.
4. Reficar’s timetable application. The timetable was extended to two days’ pre-reading and six hearing days, with the sanction hearing moved to February 2024. The court could reassess the length of a hearing as a matter of case management, even where that required changing the hearing date.
5. The relevant balance was between the urgency of a restructuring involving financial distress and procedural fairness to affected creditors. Part 26A restructuring plans differ from traditional schemes because the cross-class cramdown power places greater focus on valuation, the relevant alternative and allocation of restructuring surplus. On the evidence and the complexity of the factual and expert issues, the existing timetable was too short.

The applications were determined at first instance in the restructuring proceedings. The judgment records that a convening hearing took place on 28 September 2023, at which meetings were ordered and an expedited sanction hearing was listed. No lower-court appeal is described.