Don't Delay - Use it or Lose it
When to Refer a Claim to Manolete?
Our team of experts has years of experience in identifying, assessing and investing in claims that have the potential to recover significant value for creditors and other stakeholders. However, our experience is that a delay in referring a claim to us can sometimes create difficulties in pursuing a successful recovery.
The limitation period may be lengthy (e.g. 12 years on a TUV to recover a speciality rather than a sum of money) or no limitation period may apply (e.g. a claim to recover property held on trust), but even where there is no statutory time bar, delay can still be an issue.
How Delay Can Create Problems
Laches is a legal doctrine that essentially means "delay, inexcusable, and prejudicial." It is a defence that can be raised by a defendant in response to a claimant's claim, where the claimant has unreasonably delayed in bringing the claim. The defence of laches is typically raised in equity cases, where the claimant is seeking an equitable remedy, such as an injunction or specific performance. However, it can have a much wider ambit. The defence of laches is based on the principle that a claimant who delays in bringing a claim and allows a situation to deteriorate, to the point where it becomes difficult or impossible to obtain a fair and just result, should not be allowed to benefit from their own delay. In other words, if a claimant has been negligent or has slept on their rights, they may be prevented from pursuing their claim.
Delay can be a significant problem for claimants who are seeking to recover assets in insolvency cases. As time passes, evidence can become more difficult to obtain, memories can fade and assets can be dissipated or disposed of.
Where the remedy sought by the claimant is at the discretion of the judge, as is often the case in insolvency claims, delay is a factor which the judge is likely to take into account against a claimant.
Conclusion
Given the potential difficulties that can arise from delay, we encourage IPs to refer claims to us at the earliest possible opportunity. The earlier Manolete is involved in a case, the greater the chances of a successful recovery. We have the expertise and resources to support a thorough investigation into the case, gather evidence and pursue claims aggressively. This increases the chances of a successful outcome to the benefit of all stakeholders.
Early referral ensures we have the best possible chance of recovering value for the insolvent estate.
Our team of experts is always available to discuss potential claims and to provide solutions to maximise returns.
Andrew Cawkwell
Associate Director and Head of Business Development
Q&A
Henry Glen
Associate Director (London)
What is your legal background?
I read Law at UCL before beginning my training contract in Eversheds’ London office in 2008. This included a brilliant six-month seat in Paris, during which I learned very little about law but plenty about Parisian culture! Like many others, I somewhat fell into Restructuring and Insolvency upon qualification in the wake of the 2008 financial crisis and worked in Eversheds’ Restructuring team for a couple of years before moving to Mayer Brown. I spent seven or so years there acting for office holders and financial institutions on a wide range of matters, often with cross-border elements and cut my insolvency litigation teeth there.
How long have you been at Manolete?
I joined Manolete as a London-based Associate Director in January 2020, shortly before the world of office working was turned upside down. At least I had a couple of months to get to know my colleagues in person before WFH became mandatory; I know many people whose experiences as new joiners (and beyond) were entirely remote.
What have been your main impressions?
First and foremost, I’m very lucky to have such friendly and down-to-earth colleagues, who are all experts in what we do. There is a shared, selfless attitude of teamwork and collaboration which enables us to react quickly and find solutions to any challenges. The team has grown significantly over the past year or so but the collegiate atmosphere is as strong as ever.
Otherwise, I’ve been impressed by the weight that Manolete carries as a brand, how streamlined its operations are and how decisively it is able to adapt to any changes in the landscape within which we operate. I have witnessed several instances where potential threats have been turned into opportunities and we have played a leading role in the market.
What are the other highlights?
It’s been great to meet and work with many solicitors, barristers and IPs whom I had not encountered previously in private practice. Outside of the office, Manolete continues to organise and sponsor some great events which are fun to attend.
What do you do outside of work?
Since darts now represents my best chance of becoming a world champion (I’m not quite ready for bowls), I like to throw an arrow whenever I can. I also enjoy getting out into the countryside, watching foreign-language films, reading history books for dummies and tweaking my Fantasy Premier League team in a defiant bid to convince my mates that I know something about football. That struggle continues.
OPINION
STEPHEN BAISTER WRITES
Good and Bad Witnesses (3)
My last two short pieces have made general points about witnesses and their evidence but have concentrated largely on the evidence they give orally at trial. Often witness evidence is simply written and there is no cross-examination. This is rare at trial but not uncommon on pre-trial applications, although even then, cross-examination may be ordered.
Reliance on the part of the judge on written evidence that has not been tested in cross-examination can be dangerous. There is a long line of authority to the effect that, in the absence of cross-examination, the court should not reject a witness’s written evidence as being untrue, unless on the basis of all the evidence before the court it considers that written evidence is simply incredible (see, for example, Long v Farrer & Co and Wards Solicitors v Hendawi). The problems that can arise where the court relies on untested written evidence were recently considered in the Gibraltar Court of Appeal in Hyde & Lavarello v King (2023/GCA/001). One of the appeal judges was Colin Rimer JA who, as Rimer J, decided the appeal in Long v Farrer. It is an authoritative review of the law on the subject, as one might expect.
The application was to suspend the discharge from bankruptcy of a bankrupt, Mr King. His trustees applied for his cross-examination, but the judge refused their application which Mr King had resisted. At the final hearing of the trustees’ substantive application, applying what she called the principle in Long v Farrer, the judge declined to disbelieve the bankrupt’s evidence and dismissed the trustees’ application. Her judgment was overturned on appeal. The Court of Appeal recognised that applications to suspend discharge were commonly dealt with on the basis of the written evidence, but this was a case in which Mr King, having resisted cross-examination, could not simply rely on the principle, which, in any event, the Court of Appeal found, had not been properly applied: the judge had been too critical of the trustees’ evidence, whereas Mr King had, save arguably in one respect, on the undisputed evidence volunteered throughout his bankruptcy no information as to his assets or dealings.
Witnesses need to be aware that there is always a possibility of being cross-examined on anything said by them in a witness statement. Furthermore, resisting an order for cross-examination may backfire, as it did here. Refusing to make one may be unwise on the part of the judge. As the Court of Appeal said, “Ultimately, the underpinning rationale clearly is that of fairness,” by which it meant fairness to both sides.
Social media video
Manolete has developed a series of social media videos, with our PR partners Instinctif. The videos highlight the strength of our lawyers network, the unique Manolete model and the benefits to creditors in insolvent estates if IPs choose Manolete litigation finance.
Events
IPA Annual Conference 27 April
With 2023 set to be another challenging year for the profession, the IPA conference programme will bring together experts from across the insolvency sector and related fields to examine the complex issues the sector faces this year.
Manolete Partners is a Principal Sponsor for the event which will be held at a new venue, 30 Euston Square in central London. It is home of the Royal College of General Practitioners and conveniently located next to London Euston railway station.
Date and time
27 April 2023,
0930 to 1830
Location
30 Euston Square,
London,
NW1 2FB