Answering the initial response of Penguin's lawyers, Counsel Adrian Davies, a legal expert in the Chancery Division, briefs Mr Irving's lawyers. |
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4th January 2003 AS mentioned at paragraph 20 of my further advice dated 22nd November 2002 [...] in my opinion the right to make such an application is not "property" which vests in the trustee on bankruptcy under section 306 of the Insolvency Act, 1986, but rather a purely personal right of the bankrupt's, which does not vest in his trustee. Furthermore, applications in the context of defamation proceedings have always been treated as personal, and Davenport Lyons are wrong to seek to limit this principle to claims for personal injury; see Fletcher's Law of Insolvency (3rd ed., 2002) at para. 8-008 and Re Wilson, ex p. Vine (1878) 8 Ch. D. 364. Nor are we trying to run points which have previously failed: see paragraphs 7 to 15 of my skeleton argument. Without prejudice to that contention, we are relying on new evidence. You might wish to answer Davenport Lyons's fax of 2nd January on the lines suggested above [...] Since it was always intended that the hearing on 14th January is to be effective for directions only, presumably you will also wish to discuss directions with Davenport Lyons. My preliminary view is that if Davenport Lyons are minded to pursue their arguments on locus standi, we might sensibly suggest that locus should be the subject of a preliminary issue. That would require the filing of skeleton arguments (I would suggest within fourteen days, that is to say, on or by 28th January), and some oral argument, so I would suggest a time estimate of two hours, on the first open day after 28th January, to be fixed through the usual channels. Otherwise, I propose the following directions, namely, First Defendant's evidence in answer and skeleton argument within fourteen days, that is to say, on or by 28th January, with our evidence and skeleton argument in reply (if so advised) to follow on or by 5th February. I would have no objection whatsoever to allowing Penguin more time to file and serve its evidence in answer and skeleton argument, but on the basis of some indulgence in return. [...] Yours sincerely, Adrian Davies
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