East-West United Bank SA v Gusinski & Ors

HIS HONOUR JUDGE KEYSER KC SITTING AS A JUDGE OF THE HIGH COURT ____________________

Clare Stanley KC and Sophie Holcombe (instructed by Distinction Law) for the Claimant Graeme McPherson KC and Charles Phipps (instructed by Clyde & Co) for the Second and Third Defendants Hearing dates: 21, 22 November 2022 ____________________

In TFL Management Services Ltd v Lloyds TSB Bank plc [2013] EWCA Civ 1415 , [2014] 1 WLR 2006 , Floyd LJ set out the principles in the EasyAir case and said at [27]:

The test under r. 3.4(2)(a) is not unlike that in r. 24.2 (what in Allsop v Banner Jones Ltd [2021] EWCA Civ 7 Marcus Smith J compendiously referred to as "reasonable arguability"), though under the former rule the focus is on whether the claim could succeed on the pleaded facts, assuming those facts to be correct. Rule 3.4(2)(b) raises different issues, relevant only to the first defendant's application.

The letter explained the rationale of the Initial Proposal, stating that the Guarantors "do not currently have sufficient realisable assets available to make an immediate payment of the sums outstanding under the Facility Agreement", but that the Group would be able to do so if allowed more time. The letter made no mention of the Judgment Sum in the Kagalovsky Proceedings, which of course was then held subject to the terms of Marcus Smith J's order of 12 November 2018.