Case No. RS20D03594

85.I must make some findings in relation to the DEF Inc Side Deed, if only because I have been given responsibility for dealing with the costs of the application to the court for the mandatory injunction on 21 December 2021. I am quite clear that the breaches of the agreement with the PE Company were entirely technical but the PE Company took advantage of them in a way that was entirely opportunistic but undoubtedly in its commercial interests. The Husband’s lawyers informed the Wife in good time on 21 October 2021 of the breach and provided a good document from a corporate lawyer in Country X to explain what had happened. I am entitled to find that both parties’ lawyers then took their eyes off the ball. The Wife’s team did not respond until 16 November 2021, with a predictable list of questions. In fairness, they may not have realised the urgency. The Husband’s team then did not respond to that letter until 15 December 2021. This may well have been, in large part, because the Husband’s team did not realise that they required the Wife’s signature, as they had not appreciated the second breach, namely the failure to inform the PE Company of the change of trustees. Even so, it does not really go to their credit as the Wife was entitled to answers to her questions.86.I accept entirely that it all came to a head extremely quickly after 15 December 2021. I make the following findings of fact. The Husband needed the Wife’s signature extremely urgently. If it was not provided, a large amount of money would have been lost. I am not able to find how much money would have been lost, as the documents suggest that the interest on the loan notes would still have been payable but there undoubtedly would have been a significant financial hit. There really was no alternative other than that the Wife sign quickly. The Wife herself was entirely dependant on her lawyers. They were given very little time to consider the matter. As so often, I am sure indemnity insurance worries played a large part in their thinking. The concern to avoid a liability for negligence can have the opposite effect if you are not careful and potentially give rise to a possible claim for negligence with significant financial loss. Despite the delays, I am clear that, when the Husband’s lawyers said they would have to go to court on 21 December 2021 for a mandatory injunction, they were absolutely right to do so. Moreover, it was inevitable that the court would make an order that the Wife sign, albeit on the sort of terms that were eventually agreed as to responsibility for any resulting loss. It follows that, by lunchtime on 21 December 2021 at the latest, the Wife should have agreed to sign the Side Deed. She must pay the costs of the application to the court on the standard basis but not any costs of the investigation in the run up to the application itself, as I consider both sides bear responsibility for what occurred. The costs order is therefore limited to preparing the application and attending court to obtain the order.