Waldorf Production UK PLC, Re

A leapfrog certificate may be granted where the decision involves a point of law of general public importance, the statutory conditions are met, and there is a sufficient case for a Supreme Court appeal. The court must assess whether the first-instance decision centrally involved a legal point on which the judge was bound by Court of Appeal or Supreme Court authority. The relevant issue may concern the correct legal test governing the exercise of a judicial discretion. The sufficient-case requirement concerns the coherence, plausibility and importance of the proposed argument, rather than the first-instance judge’s own view of its merits.

The Plan Company applied for a certificate under section 12 of the Administration of Justice Act 1969 to seek permission to appeal directly to the Supreme Court against the refusal to sanction its restructuring plan. It argued that the approach to fairness for out-of-the-money creditors in Virgin Active should prevail over the subsequent Court of Appeal authorities in Thames Water and Petrofac.

In the alternative, it sought permission to appeal to the Court of Appeal and directions concerning the time for filing an appellant’s notice. The court also determined a consequential costs dispute.

1. Leapfrog certificate granted. The court held that the proposed issue—whether fairness to out-of-the-money creditors is assessed solely by reference to the relevant alternative, or by reference to what creditors should fairly and reasonably receive for surrendering their claims—was a point of law of general public importance. The significance of the Part 26A restructuring-plan jurisdiction supported that conclusion.
2. The exercise of a judicial discretion did not prevent section 12(3) of the Administration of Justice Act 1969 from applying. The question was whether the judge had adopted the correct legal test when exercising the discretion.
3. Applying A v B, the court asked whether the Court of Appeal would be bound by Thames Water and Petrofac, and whether there was a realistically arguable prospect that the Supreme Court would qualify or overturn the relevant legal conclusion. The decision centrally involved a point of law on which the judge considered himself bound.
4. The judge remained persuaded that the Court of Appeal’s trilogy, including Petrofac, had adopted the correct approach. Nevertheless, the contrary argument based on Virgin Active was coherent, plausible and arguable, particularly because earlier cases had treated nominal payments as sufficient. The grant of a certificate enabled the Supreme Court to determine whether permission should be granted and potentially to consider the issue alongside the pending Petrofac application.
5. The alternative Court of Appeal application did not justify immediate conditional permission. Instead, pursuant to CPR 52.12(2)(a), the time for filing an appellant’s notice was extended until the earlier of withdrawal of the Supreme Court application or 14 days after refusal of permission by the Supreme Court Appeal Panel.
6. The court made no further order for the disputed post-hand-down costs of the Capricorn Companies.

First-instance decision on applications for a leapfrog certificate, permission to appeal and consequential costs. The judgment refers to the earlier sanction decision in [2025] EWHC 2181 (Ch).