In Re Petrofac Ltd [2025] EWHC 2887 (Ch), the English High Court made an administration order in relation to a Jersey-incorporated company even though its registered office was not in England which is the starting point for determining COMI and therefore the Court’s jurisdiction to make such an order.

Background

Petrofac Limited (the Company) is the holding company in a wider corporate group (together with the Company, the Group), which is a leading international service provider to the energy industry. The Company, although incorporated in Jersey, made an application for an administration order in the English Courts.

As Mr Justice Richards noted in his judgment, the administration application was “the most recent instalment in a somewhat tortuous and winding road for the Company in relation to its debt”. The Company, together with another Group entity, had previously launched a Part 26A Restructuring Plan, which was sanctioned at first instance, however, later reversed by the Court of Appeal. The Company then sought to raise funds via the sale of its business (or part thereof) to senior creditors via a pre-pack administration. The latter was, however, derailed when a key contract was terminated by one of its counterparties, TenneT. Payment and collateral demands subsequently ensued from creditors of the Company, which it was unable to meet, leading to the application for an administration order before the English Court.

Judgment

Mr Justice Richards summarised the three main requirements that must be met before the English Court will exercise discretion to grant an administration order with respect to a company:

  • The company must be unable (or likely to become unable) to pay its debts;
  • The Court must be satisfied that the administration order would be reasonably likely to achieve the purpose of the administration, and
  • The Court must be satisfied that it has jurisdiction – in this case, the company’s centre of main interest (COMI) must be in the United Kingdom.

Decision

The Court had no issues in determining limbs (i) and (ii) above were satisfied in this case.

Turning to the question of whether the Company’s COMI was in the United Kingdom, the starting point was the definition of COMI in Regulation (EU) 2015/848, as retained under English law post-Brexit (the Recast Insolvency Regulation), which provides that:

“The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary…”

It was noted that recital (28) – (30) of the Recast Insolvency Regulation emphasised the COMI determination turned on the perception of third parties, and in particular, creditors. In other words, what location do the creditors of the relevant debtor company consider that it conducts the administration of its interests from. That assessment may be informed by factual matters such as informing creditors of a particular location that the company carries out its activities from.

In this case, the Company was headquartered in London; negotiation and communications with creditors generally took place in the UK, and senior management of the Company were based in the UK. The Company had also sent emails to all of its creditors informing them that dealings with the Company in relation to its debts were to take place in the UK. Thus, there was a strong presumption that the Company’s COMI was in the UK.

The Company’s articles of association contained a restriction on board meetings taking place in the UK, however, little weight was placed on this by the Court, given that how a Company chooses to pass its board resolutions is not the focus of the COMI test set out in the Recast Insolvency Regulation, and secondly, creditors may not necessarily know where the Company makes its decisions or holds its board meetings in any event. As such, the Court held that the Company’s COMI is in the UK, and exercised its discretion to grant the administration order.