Tag Archives: Birmingham

The enforcement of pre-existing security over assets that become subject to a freezing order

A recent decision in the High Court provided guidance with respect to the apparent conflict between freezing orders that have been granted over assets that are subject to an existing security. Generally speaking, a freezing order should only catch the unsecured elements of assets. The question facing the court in Taylor v Van Dutch Marine … Continue Reading

Does ATE insurance trump Security for Costs?

When reviewing a security for costs application under CPR 25.12, the courts are faced with the challenge of striking a balance between an impecunious claimant’s access to justice and the possibility of a successful defendant being unable to recover their costs. This is because the general rule in relation to costs under CPR 44.2 is … Continue Reading

We’ve heard it all before: re-running arguments in bankruptcy proceedings

The Court of Appeal in Harvey v Dunbar Assets plc [2017] EWCA Civ 60 has confirmed that parties cannot re-litigate failed arguments that have previously been presented in bankruptcy proceedings. This will be welcome news for creditors in situations where debtors rehearse the same arguments at several stages of the bankruptcy process in an attempt … Continue Reading

Reality Check for Rates Liability

The construction industry has never been a stranger to insolvency. There are many factors for insolvency practitioners appointed over a part complete site to consider – security issues, engaging with contractors, creditors and suppliers at the earliest opportunity, not to mention the potential health and safety exposure. The insolvency practitioner will also need to make … Continue Reading

The balance of power – the right deal or the best deal? New administration procedure for housing sector

The Housing and Planning Act 2016 (the “Act”) introduces special administration procedures for social housing associations which aim to protect the level of social housing in the UK.  The new housing administration orders (“HAOs”) create an additional objective for insolvency practitioners to try to keep social housing in the regulated housing sector to maintain levels of … Continue Reading

Marshalling Allows Individuals to Benefit from Agricultural Charges

The High Court has recently held that an individual may claim the proceeds of the sale of assets subject to an agricultural charge by the application of the equitable remedy of marshalling. Agricultural Sector The agricultural or farming sector includes a combination of unique assets and ownership structures that have given rise to a bespoke … Continue Reading

PPF updates guidance for restructuring and insolvency practitioners

Since its inception in 2005, the PPF has been a welcome safety net for employees whose company pension scheme is in deficit and the sponsoring employer is on the verge of insolvency. The PPF’s major challenge has been preventing employers from deliberately engineering or recklessly creating such deficits in the pension scheme (to the benefit … Continue Reading

Are you “special” enough to be validated?

The presumption that courts normally validate dispositions by a company subject to a winding up petition if such dispositions are made in good faith and in the ordinary course of business has been called into question in the recent case of Express Electrical Distributors Ltd v Beavis and others [2016].  Whilst the court has discretion … Continue Reading

Insolvency Service Fees Overhaul – Good News or Bad?

A new fee structure in respect of insolvency fees payable to the Insolvency Service came into force on 21 July 2016, pursuant to The Insolvency Proceedings (Fees) Order 2016 (SI 2016/692) (the “Order”), which revokes The Insolvency Proceedings (Fees) Order 2004 (SI 2004/593) and all ten subsequent amendment orders. The Order increases the deposits and … Continue Reading

Rescue Culture or Rogues’ Charter – Is Proposal A Step Too Far?

Last week the UK Government issued a consultation document on changing UK insolvency legislation to enable distressed companies to obtain a moratorium for up to three months, with the possibility of an extension, under the supervision of an insolvency practitioner. The moratorium would prevent all creditors, including secured creditors, from taking any enforcement action against such companies without first applying to … Continue Reading

A Contradiction over Jurisdiction? English Contract Law v Foreign Insolvency Law

During contract negotiations parties usually agree what law and which courts will determine any disputes arising from that contract.  This brings certainty for the parties.  However that certainty can vanish if one party is a foreign registered company and becomes insolvent – the other party may suddenly become exposed to unexpected foreign insolvency law.  At … Continue Reading

The End of the Insolvency Shield for Insurers?

The Third Parties (Rights Against Insurers) Act 2010 (“TPR”) will finally come into force on 1 August 2016, making it easier for third parties to bring claims against insurers of insolvent companies.  It has taken more than six years, spread over three separate governments and was amended even before it came into force, but TPR … Continue Reading

Sunny side up or sunny side down (what is it with pension liabilities . . .)?

The latest iteration of the Sun Capital litigation has confirmed once again what many restructuring professionals have known for a long time – that pension liabilities have a nasty habit of kicking investors where it hurts, often when least expected. Our recent blog explains the decision and provides some insights on the case. One of … Continue Reading

The minefield of surrenders and assignments

The minefield of surrenders and assignments A lease can often be the most financially draining contract a company has hanging around its neck, which can be particularly burdensome when the tenant company is already facing financial distress. Administrators are regularly faced with the task of relieving the administration estate of an onerous, costly lease and … Continue Reading

Are you a Person with Significant Control – and why does it matter?

From April 2016 companies and limited liability partnerships (“LLPs”) (except for publicly traded companies) will be required to create and maintain a register of persons with “significant control” over the company (“PSC Register”) and in due course send that information to Companies House where it will be publically searchable. What’s the purpose of the new … Continue Reading

Wrongful Trading – IPs Need to Demonstrate an Increase in Net Deficiency for a Successful Claim

Directors of a company are subject to certain duties under the Companies Act 2006. These duties are of obvious importance throughout their service as a director but some of them become particularly important during the period leading up to the insolvency of the company. If a current or former director of a company knew or … Continue Reading

A rock and a hard place…

It is very much the nature of the job that appointed Office Holders are required to make difficult and challenging decisions on each and every case they take. On some occasions those decisions are well received – on others, not so well. Creditors affected by those decisions can take comfort that the Office Holder is … Continue Reading

Breaking Up is Hard to Do…

As the next quarterly rental payment fast approaches, some companies – particularly in the retail sector where sales in the run up to Christmas haven’t been what they’d hoped – may be considering exiting an onerous, costly lease. That will involve reviewing the break clauses in the lease and weighing up the costs of exercising … Continue Reading

A shift in the balance……?

On 14 September 2015, judgment was handed down in the case of Re SSRL Realisations Limited (In Administration), in which a landlord was granted permission to forfeit a lease by peaceable re-entry. The case will be of interest to insolvency practitioners and landlords alike – but for very different reasons. The facts of this case … Continue Reading

New High Court Treatment for Subject Access Requests

Dealing with subject access requests (“SAR”s) under the Data Protection Act 1998 is becoming a regular occurrence for many organisations, particularly banks and their advisors.  Processing such requests can take up significant manpower and the costs can be substantial.  Whilst designed to allow individuals to access personal data, determine its source, why it is held … Continue Reading

Water into WIFI – A Modern Definition of “Essential”

On 1 October 2015 the Insolvency (Protection of Essential Supplies) Order 2015 (“PESO”) will come into force. PESO aims to strengthen the statutory protection provided to insolvent companies and insolvency practitioners who need to utilise ‘essential supplies’ to continue to trade. Essential Supplies When a business enters an insolvency process they often need continuity of … Continue Reading
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