With increased public awareness that a notice of intention to appoint administrators (NOI) has been filed, we are finding that third parties – usually the company’s creditors, suppliers and employees – are disrupting the administration process in a way that can cause significant risks to a company’s ability to continue trading, the overall value of … Continue Reading
Our recent insight provides a comparative summary of the insolvency procedures that are available in the United Arab Emirates (UAE), the Kingdom of Saudi Arabia (KSA), England and Wales, and the US. It compares which debtor-in-possession, office-holder and terminal procedures are available in each of those jurisdictions, as well as considering the extent to which the … Continue Reading
In a recent decision that will add some welcomed clarity to the imposition of Part A1 moratoriums over companies which have been presented with a winding-up petition, the High Court has reflected on the requirements of section A4 of the Insolvency Act 1986 (the “Act”) and confirmed the test that must be satisfied in order … Continue Reading
The case of Liberty Commodities Ltd v Citibank NA London & Ors [2023] EWHC 2020 (Ch) provides a helpful reminder of the principles that the court will adopt when dealing with a winding up petition – particularly where there are supporting creditors. Even when the company and petitioning creditor have reached agreement in respect of the petition debt … Continue Reading
Making an out of hours qualifying floating charge holder (“QFCH”) appointment can be problematic due to the procedural requirements set out in Rule 3.20 of the Insolvency (England and Wales) Rules 2016 (the “Rules”). If a QFCH wishes to make an appointment when the court is closed then it can do so but must … Continue Reading
A thorny question facing a company when considering a Restructuring Plan is how to deal with HMRC particularly following HMRC’s opposition to recent plans. Creditors now have some assistance in these deliberations thanks to guidance published by HMRC setting out how they will approach discussions with companies considering a Restructuring Plan. The guidance reflects the … Continue Reading
The answer to that question and with a huge sigh of relief is thankfully not, following the Supreme Court finding that an administrator of a company appointed under the Insolvency Act 1986 (“IA 1986”) is not an “officer” of the company within the meaning of section 194(3) of the Trade Union and Labour Relations (Consolidation) … Continue Reading
The Court of Appeal has unanimously overturned an unlawful preference ruling from the High Court, finding instead that the repayment of inter-company debt did not amount to a preference because, at the time the operative decision to make the repayment occurred, there was no desire to prefer. The case involved the repayment, by Comet Group … Continue Reading
What we know for certain is that it is possible to cram down HMRC using a restructuring plan, but not without good reason. In a battleground which ultimately turns on individual circumstances there are some general lessons we can learn from recent cases which might assist in persuading a court to exercise its discretion to … Continue Reading
Although a non-insolvency case the recent case of PACCAR Inc & Ors v Competition Appeal Tribunal & Ors (“PACCAR”) has caused waves in the litigation market (including insolvency litigation market) following the Supreme Court finding that litigation funding agreements (LFAs) where funders recover a percentage of the amount awarded to a claimant are damaged based … Continue Reading
From time to time, officeholders apply to court to seek approval of a proposed course of action which they have decided to take in connection with their function. But where the court sanctions those decisions, are the officeholders protected from subsequent claims relating to the same? The Court of Appeal, in the case of Denaxe … Continue Reading
Although an initial administration extension can be dealt with by consent, if that consent is not valid the extension will also be invalid. This leaves administrators in a difficult position because they will not be in office unless the court remedies the position. Obtaining consent might seem straightforward but obtaining the consent of secured creditors … Continue Reading
A floating charge debenture holder has the advantage that they can enforce their security by appointing their choice of administrators. This is a powerful and useful tool for lenders but is subject to the caveat that the debenture has to be “qualifying”. What does this mean? In short, the charge must give the lender the … Continue Reading
As far as they go, restructuring plans have worked well since they were first introduced 3 years ago. This is reflected in the most recent review of CIGA published by the Insolvency Service which reflects favourably on this new insolvency measure. However, there are still some barriers to its use. Not unsurprisingly costs are quoted … Continue Reading
The three year review of CIGA (the Corporate Insolvency and Governance Act) published by the Insolvency Service suggests that we might see changes to the corporate moratorium process – will these address concerns about the process and encourage more insolvency practitioners to recommend its use? The moratorium aims to protect companies from enforcement action to … Continue Reading
It’s now level pegging for HMRC on cram down – twice it has been crammed down, and twice it has not. In the most recent restructuring plan proposed by Prezzo, the court sanctioned the company’s restructuring plan and crammed down HMRC as both preferential and unsecured creditor. Unlike Houst’s restructuring plan, where HMRC was also … Continue Reading
In its battle to control and reduce the rate of inflation, the Bank of England has increased interest rates for a 13th consecutive time. Already at its highest level for nearly 15 years, rising interest rates are continuing to apply pressure on finances both at home and in businesses. Despite the Bank’s efforts, although slightly … Continue Reading
In two recent blog posts we discussed the challenge made to the Company Voluntary Arrangement (CVA) of Mizen Build/Design Ltd (the “Company”) by Peabody Construction Limited (“Peabody”) and the finding of (i) a material irregularity based on failure to disclose information to creditors in the CVA proposal, and (ii) unfair prejudice based on vote swamping. … Continue Reading
The court has recently confirmed that it does have jurisdiction to grant administrators a conditional discharge of liability but decided not to do so in the case of Re Central Properties Holdings Ltd (in administration) [2023]. In this blog we consider why the court refused to make that order and whether there are any circumstances … Continue Reading
The recent case of Re Lloyds British Testing Ltd [2023] is a reminder not to forget that in the right circumstances a director’s occupational pension pot might be a valuable source of funds that an Insolvency Practitioner (IP) can access to recover an unpaid debt due from a former director. Background In this case, an … Continue Reading
What can we say about the outcome of the GAS (Great Annual Savings Company Limited) sanction hearing that hasn’t already been reported? It’s impossible not to comment on the fact that the plan was not sanctioned, and as a consequence of fierce opposition from HMRC that it avoided cram down. Nor that the court refused … Continue Reading
The recent case of Dolfin Asset Services Ltd v Stephens & Anor (Re Dolfin Financal (UK) Ltd) [2023] EWHC 123 (Ch) (“Dolfin“) concerned a special administration, but it has relevance to administrators more generally. In particular, when it comes to the judge’s view of what is meant by the word “consider” – which is phrase … Continue Reading
In a decision likely to be welcomed by both debtors and lenders, the High Court has held that a charge granted by Avanti Communications Limited (“Avanti”) was properly characterised as a fixed charge (rather than a floating charge) notwithstanding that the chargor retained an element of control over the charged assets. A key plank of … Continue Reading
The NSIA is aimed at safeguarding national security and only applies to certain transactions occurring within certain sectors where national security might be threatened. There are 17 sectors in total, including energy, transport, and communications. Depending on the transaction, the NSIA may require a purchaser to notify the Secretary of State of an acquisition to … Continue Reading
