Geoffrey Carton-Kelly v Darty Holdings SAS

An application to release money paid into court is not necessarily an application to vary the order under CPR 3.1(7). Where the order permits payment out by further order, the court must determine whether justice requires release in the circumstances existing at the later hearing.

The usual restraint against revisiting interim orders remains relevant, but it is discretionary rather than jurisdictional. Obtaining a judgment-protection insurance policy may constitute a material change of circumstances. The court must balance the judgment creditor’s entitlement and practical need for the money against the risk of irremediable prejudice to the judgment debtor. The adequacy of insurance is fact-sensitive; the absence of an anti-avoidance clause is not automatically decisive.

The applicant, the liquidator of CGL Realisations Limited, obtained judgment for nearly £111 million following a preference claim under section 239 of the Insolvency Act 1986. The judgment sum was paid into court pending the respondent’s proposed appeal.

The applicant later obtained a judgment-protection insurance policy and applied for payment out of £36.288 million, comprising sums covered by that policy and by an ATE policy. He also sought confidentiality restrictions over the insurance policy. The respondent opposed payment out, arguing that there had been no material change of circumstances since the consequential order.

1. Payment out. The application was granted in relation to the sums covered by the judgment-protection policy and the ATE insurance. The application was made pursuant to CPR 37.3 and paragraph 4 of the consequential order. It did not seek to vary that order, so the principled restraint identified in Tibbles v SIG Plc was not the correct starting point.
2. Material change. The requirement of a material change of circumstances is not jurisdictional. It is ordinarily an important limitation on the proper exercise of discretion, preventing repeated attempts to obtain a different decision on the same material. In any event, obtaining the particular judgment-protection policy was plainly a material change because the court could now assess its adequacy.
3. Balance of justice. The applicant held an unimpeached money judgment and was entitled in principle to use the judgment money. The relevant question was whether the insurance provided sufficient protection against irreversible prejudice to the respondent. Applying the balance-of-injustice approach in Hammond Suddards Solicitors v Agrichem International Holdings Limited, and having regard to the overriding objective, the court concluded that any prejudice to the respondent was theoretical rather than practical.
4. The security-for-costs authorities, including Premier Motorauctions Ltd v PricewaterhouseCoopers LLP and Hotel Portfolio II UK Limited (In Liquidation) v Ruhan, concerned a different jurisdictional question. They did not establish that the absence of an anti-avoidance clause was automatically decisive. The bespoke policy, its limited disclosure obligations, the restricted appeal grounds and the absence of any identified practical risk of avoidance provided adequate protection.
5. Confidentiality and appeal. The policy was commercially sensitive, but open justice favoured an order preventing non-parties from inspecting or receiving it without an application on notice. Permission to appeal and a stay were refused.

The judgment itself records the earlier trial and consequential order but is a first-instance decision on the applications for payment out, confidentiality, permission to appeal and a stay.