Costs

When considering whether the ability of a third party to provide funds could be taken into account in assessing the likelihood that a company could make a payment into court, the question had to be whether the company could raise the money and not whether the relevant shareholder could raise the money.

The appropriate criterion to be applied was whether the appellant company had established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition. Accordingly, the Supreme Court allowed the appellant company’s appeal against a finding that its appeal against an earlier judgment would be dismissed, on the grounds that it could not make the required payment into court.