Privy Council concludes that Cambridge Gas was wrongly decided

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In a landmark decision handed down this morning in an Appeal from the Court of Appeal in Bermuda, the Privy Council has declared Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings Plc [2006] UKPC 26, [2007] 1 AC 508 ("Cambridge Gas") an unsafe authority for the concept of judicial assistance in international liquidations. 

The Appellant's key argument before the Board (Lords Neuberger, Mance, Clarke, Sumption and Collins) was that the Bermuda court should use common law to directly apply the examination provisions of section 195 of the Companies Act 1981 "as if" it applied to foreign companies.

Lord Sumption stated that "although statute law may influence the policy of the common law, it cannot be assumed, simply because there would be a statutory power to make a particular order in the case of domestic insolvency, that a similar power must exist at common law. So far a Cambridge Gas suggests otherwise, the Board is satisfied that it is wrong".

Lord Collins stated that "to apply insolvency legislation by analogy "as if" it applied, even though it does not actually apply, would go so far beyond the traditional judicial development of the common law as to be a plain usurpation of the legislative function".

In a linked appeal, the Board held that the Supreme Court of Bermuda did not have jurisdiction to make the winding up order against Saad Investments Company Limited ("SICL"), a company incorporated in the Cayman Islands, and accordingly that it should be stayed. In addition, it held that "on the very unusual facts of this case" SICL's auditors, PricewaterhouseCoopers ("PwC"), had the right to be added as parties to the Petition to challenge the winding up order in answer to an application by the liquidators under section 195 seeking the disclosure of documents in PwC's possession.

Blake Morgan LLP acted as Privy Council agents for the Appellant and Respondent, Singularis Holdings Limited and Saad Investments Company Limited, in the respective Appeals.