Disclosure requirements in a restructuring plan

The plan involved inter alia the compromise of landlord liabilities, and the disclosure application was made by the landlord of the Oxford Street premises.

The court held:

• Paragraph 1.12 of PD 57AD stated that the party seeking an order for disclosure in a Part 8 claim must serve and file a list of issues for disclosure. The judge stated that he did not think that that was necessary in this case: and given the nature of the Explanatory Statement, he doubted that such a procedure would often be appropriate in the case of schemes and plans. What was sought here was not general disclosure, but rather the disclosure of specific documents which the court had power to do under CPR Part 31.
• The application had sought the disclosure of any cash flow forecasts in respect of the plan company and parent. The plan company countered that these were only prepared on a group basis and were not broken down by company. The judge stated that he proposed to make an order on a group basis only. The judge reasoned that, even if a group forecast must consist of an agglomeration of information, it was not necessarily the case that information was contained in a cash flow forecast for the plan company or for the parent as individual entities. Furthermore, it was clear that the plan company and the parent stood and fell together as part of the group, and any surplus generated by the adoption of the plan would be captured by the group generally.
• The estimated recoveries in the relevant alternative were calculated on the basis of an independent report prepared by a third-party expert including an estimate of rental value for each premises “ERV”. The landlord sought disclosure of the report, but the plan company sought disclosure redacted to only show information for the Oxford Street Premises. The court held that it proposed to make an order in the form sought by the landlord. The report seemed to form a significant element in the calculation of the estimated recoveries in the relevant alternative. It was the estimated recoveries as a whole (not the estimated recovery from the Oxford Street premises) which would determine the compromise payment to the landlord, and the assessment of "ERV" seemed to bear upon class composition, points on which the landlord should be allowed to make before the plan meetings.

C-Retail Limited [2024] EWHC 1194 (Ch), Chancery Division