Category: Insolvency

Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others: ChD 8 Feb 2000

A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver did not, in the absence of explicit limitations to the contrary exhaust the power to appoint receivers.

Citations:

Times 08-Feb-2000, Gazette 16-Mar-2000

Jurisdiction:

England and Wales

Citing:

See Also – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others (No 2) ChD 30-Mar-2000
The new Civil Procedure Rules had not substantially affected the rules on costs following the event of a trial. The discretion in a judge as to the order for costs had been correctly stated in Elgindata, and approved in Phonographic Performance Ltd . .

Cited by:

See Also – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others (No 2) ChD 30-Mar-2000
The new Civil Procedure Rules had not substantially affected the rules on costs following the event of a trial. The discretion in a judge as to the order for costs had been correctly stated in Elgindata, and approved in Phonographic Performance Ltd . .
Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 05 August 2022; Ref: scu.81095

Hardy v Focus Insurance Co (In Liquidation): ChD 19 Jul 1996

The Court has no power to direct the Official Receiver as to suspension of bankruptcy.

Citations:

Times 19-Jul-1996, [1997] BPIR 77

Statutes:

Insolvency Act 1986 303(1) 303(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Bagnall QC v the Official Receiver ChD 18-Jun-2003
The bankrupt was to receive his automatic discharge. The receiver had applied ex parte to suspend the automatic discharge. The bankrupt appealed.
Held: The court had power to make such an order. The court had seen strong prima facie evidence . .
Cited – Jacobs v Official Receiver; In re Jacobs (a bankrupt) ChD 3-Apr-1998
The bankrupt was due to have his automatic discharge, but the Official Receiver applied on the day before for the discharge for an interim suspension of the discharge to allow consideration of his alleged lack of co-operation. The bankrupt said the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 05 August 2022; Ref: scu.81234

Singh v HM Revenue and Customs: UTTC 15 May 2010

UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in his bankrupty. He now renewed his application to bring judicial review.
Held: He had no standing to bring judiial review proceedings. Warren J approved the aproach suggested in Hurren, that agreement should be sought between the bankrupt and the inspector, with the trustee ensuring that any agreement was proper.

Judges:

Warren J P

Citations:

[2010] UKUT 174 (TCC), [2010] BPIR 933, [2010] BTC 1548, [2010] STI 1723, [2010] STC 2020

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Smith (a bankrupt) v Braintree District Council HL 1989
The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
Cited – Heath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .
Cited – Wordsworth v Dixon CA 1997
The bankrupt had been a defendant in the action brought by the plaintiff. The court considered his standing to appeal.
Held: The right to appeal vested in the trustee. Sir Thomas Bingham MR referred to the case of Heath v Tang and said: ‘that . .
Cited – Re a Debtor, ex parte the Debtor v Dodwell ChD 1949
Harman J held that it was for the bankrupt’s trustee alone to settle with the Crown in a case where the bankrupt had been discharged and there was no tax assessment. . .
Cited – Re Hurren (a bankrupt) ChD 1983
There might have been a surplus after paying the debts due to the Inland Revenue (the major creditor).
Held: The way forward was for the trustee to agree the tax liability with the Revenue but only with the consent of the bankrupt. Walton J . .
Cited – Sivasubramaniam v Wandsworth County Court, Management of Guildford College of Further and Higher Education and Another CA 28-Nov-2002
Having had various claims made in county courts rejected, the applicant was then refused leave to appeal. He sought judicial review of the refusal to give leave to appeal, and now appealed the refusal of leave to apply for a judicial review.
Lists of cited by and citing cases may be incomplete.

Taxes Management, Judicial Review, Insolvency

Updated: 05 August 2022; Ref: scu.428155

Paterson v Aggio: CA 1987

The Court considered whether a tenancy was a ‘protected shorthold tenancy’ within the meaning of section 52 of the Housing Act 1980 and therefore excluded from the protection of the Rent Act 1977.
Held: A power to forfeit within the minimum year tenancy for the bankruptcy of the tenant, was not to be taken to mean it was not a shorthold tenancy. ‘although on a strict construction’ it could be said that ‘the requirement not to become a bankrupt was not an ‘obligation’ on the tenant’, this would defeat the plain intention of the legislature. ‘ and ‘if a tenant under the terms of the tenancy agreement with which we are concerned went bankrupt, this must amount to a breach by him of an obligation or a term or condition of the tenancy and, in the context of the Rent Acts, would entitle the landlord to possession under Case 1 of Schedule 15 to the 1977 Act.’

Judges:

May LJ

Citations:

[1987] 2 EGLR 127

Statutes:

Housing Act 1980 52, Rent Act 1977 Sch 15 C 1

Jurisdiction:

England and Wales

Citing:

Cited – In re Drew (A Bankrupt) 1929
(Ireland) A tenant subject to a re-entry clause in his tenancy agreement in the case of his being made bankrupt, and who had gone bankrupt had broken an obligation of his tenancy. He was not protected from an order for possession. ‘The tenant here . .

Cited by:

Cited – Cadogan Estates Limited v McMahon HL 26-Oct-2000
When a tenancy was terminated and was followed by a statutory tenancy, a term in the contractual tenancy that the tenancy should be forfeit on the tenant’s bankruptcy was continued in and inherited by the statutory tenancy. Though perhaps in . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency, Housing

Updated: 05 August 2022; Ref: scu.196910

In re A Debtor (No 66 of 1955), Ex parte The Debtor v Trustee of Waite (A Bankrupt): CA 2 Jan 1956

Waite owed the debtor andpound;101 for goods sold and delivered. He was bankrupted, having previously guaranteed the debtor’s overdraft and deposited the deeds of his property as security. Waite’s trustee paid the bank andpound;133 out of the bankrupt’s assets which had vested in him as trustee to pay off the overdraft and obtain the release of the deeds. When he claimed reimbursement, the debtor claimed to set off the andpound;101 he was owed by Waite, for which he would otherwise have had to prove in the bankruptcy.
Held: A surety under a pre-insolvency guarantee is not entitled to set-off unless he has actually paid the debt before the insolvency date.

Judges:

Lord Evershed MR, Hodson LJ

Citations:

[1956] 1 WLR 1226

Jurisdiction:

England and Wales

Citing:

Appeal from – In re A Debtor (No 66 of 1955), Ex parte The Debtor v Trustee of Waite (A Bankrupt) ChD 1956
Waite owed money and guaranteed a debt before being made bankrupt. Waite and his trustee were not for this purpose the same person. Waite had held his assets for his own benefit. The trustee paid the debt.
Held: The trustee held the assets . .
Distinguishd – In re Moseley-Green Coal and Coke Co Ltd, Ex parte Barrett 1865
Mr Barrett owed the company money on his partly-paid shares for which calls were made after it went into insolvent liquidation. He had also guaranteed the company’s liability for the purchase price of a coal mine, for which the vendor held security . .

Cited by:

Appealed to – In re A Debtor (No 66 of 1955), Ex parte The Debtor v Trustee of Waite (A Bankrupt) ChD 1956
Waite owed money and guaranteed a debt before being made bankrupt. Waite and his trustee were not for this purpose the same person. Waite had held his assets for his own benefit. The trustee paid the debt.
Held: The trustee held the assets . .
Incorrect – Secretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 05 August 2022; Ref: scu.196871

Oakland v Wellswood (Yorkshire) Ltd: CA 30 Jul 2009

The employer was in financial difficulties. A new company was formed by a customer to acquire its assets, and the employees, including the claimant were taken on by the new company. The claimant was dismissed within a year after. On claiming unfair dismissal, the new company said that he had no continuity of employment from his former company, and therefore no vested right not to be unfairly dismissed. The defendant said that because the former company went into insolvent administration, the employment had not, under reg 8(7), been transferred. A new question was whether section 218 preserved the claim.
Held: It was open to the court to look at the new point. Since the new company had, by concession, acquired the business of the company, under section 218(2), the two periods of employment were to be added together giving the claimant sufficient total time to claim unfair dismissal. The question of the insolvency did not in the event arise.

Judges:

Rix, Smith, Moses LJJ

Citations:

[2009] EWCA Civ 1094, [2010] BCC 263, [2010] IRLR 82

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006 8(7), Employment Rights Act 1996 218, Directive 2001/23/EC (the Consolidated Acquired Rights Directive)

Jurisdiction:

England and Wales

Citing:

Appeal From – Oakland v Wellswood (Yorkshire) Ltd EAT 9-Jan-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
The Claimant was found to have been unfairly dismissed. The case was remitted to a different Tribunal in the light of the decision of the Employment Tribunal . .
Cited – Glennie v Independent Magazines (UK) Limited CA 17-Jun-1999
A party is under a duty to present his entire case at the first hearing in the Employment Tribunal. Where a claimant’s representative had decided to adopt a particular position in law when making representations to the original industrial tribunal, . .
Cited – Wilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
Cited – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 04 August 2022; Ref: scu.377304

In re Kaupthing Singer and Friedlander Ltd: ChD 2 Oct 2009

Judges:

Norris J

Citations:

[2009] EWHC 2308 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal From – In re Kaupthing Singer and Friedlander Ltd CA 11-May-2010
The court was asked as to the set-off, in a company administration, of future debts owed by the company to its creditors and by those creditors to the company, and whether the effect of those provisions was that, after the future debts were . .
See Also – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 04 August 2022; Ref: scu.375620

German Graphics Graphische Maschinen Gmbh v Alice van der Schee, acting as liquidator of Holland Binding BV (Area Of Freedom, Security And Justice): ECJ 10 Sep 2009

ECJ Insolvency – Application of the law of the Member State of the opening of proceedings – Reservation of title – Situation of assets.

Citations:

C-292/08, [2009] EUECJ C-292/08

Links:

Bailii

European, Insolvency

Updated: 04 August 2022; Ref: scu.374764

Parmalat Capital Finance Ltd and others v Food Holdings Ltd and Another: PC 9 Apr 2008

(the Cayman Islands) Lord Hoffmann said that ‘a winding up order does not affect the legal rights of the creditors or the company’.

Judges:

Lord Hoffmann

Citations:

[2008] UKPC 23, [2008] BCC 371

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 August 2022; Ref: scu.266536

Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd: CA 29 Nov 2005

The claimant investors said that their financial adviser, the defendant insolvent company, had given them negligent advice. The action was brought as a preliminary to claiming against the defendant’s insurers under the 1930 Act, in the way made necessary by the Post Office and Bradley cases. Limitation defences were deployed to strike the action out. The claimant had put in a proof of debt in the liquidation, but the liquidator had neither admitted nor rejected it.
Held: Establishment of liability by action, by arbitration or agreement between the insured and the third party, was a prerequisite to a claim, even though agreement will not always be possible, for example where the policy prohibits it.
Lloyd LJ said: ‘If proceedings are necessary, they may take one of a number of forms. The obvious instance is a claim such as the present. Because the company is in voluntary winding-up it is unnecessary to obtain consent before starting such a claim. If the winding-up were compulsory the court’s permission would be needed, and the court might regard it as more appropriate for the third party to prove for its debt. If the liquidator were to reject that proof, the third party could appeal against that rejection under rule 4.83 of the Insolvency Rules 1986. That would lead to a judicial determination which would also be sufficient establishment of the liability of the insured. Nothing turns on the particular procedure adopted. It makes no difference whether the proceedings themselves are brought within the bankruptcy or winding-up { proceedings or outside them, as is the present claim.’

Judges:

Lloyd LJ, Moore-Bick LJ

Citations:

[2004] Ch 317, [2005] EWCA Civ 1408, [2006] 1 QB 808

Links:

Bailii

Statutes:

Third Parties (Rights against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Cited – Laroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Limitation, Insurance, Insolvency

Updated: 04 August 2022; Ref: scu.235436

Rowland and Another v Stanford: ChD 21 Apr 2021

Application for Norwich Pharmacal relief against the Defendant

Judges:

Mr Justice Adam Johnson

Citations:

[2021] EWHC 988 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Rowland and Another v Stanford 1713 ChD 13-Jun-2022
. .
See Also – Rowland and Another v Stanford 1436 ChD 13-Jun-2022
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 August 2022; Ref: scu.662129

In re Humber Ironworks and Shipbuilding Co: 1869

The assets of a company held on the statutory trusts should be distributed as if they had all been collected and distributed on the date of the winding up order: ‘I think the tree must lie as it falls; that it must be ascertained what are the debts as they exist at the date of the winding up, and that all dividends in the case of an insolvent estate must be declared in respect of the debts so ascertained. ‘ No allowance is made for interest accruing after the date of the winding up order.
Giffard LJ explained that ‘where the estate is solvent . . , as soon as it is ascertained that there is a surplus, the creditor . . is remitted to his rights under his contract’.

Judges:

Selwyn, Giffard LJJ

Citations:

(1869) LR 4 Ch App 643

Jurisdiction:

England and Wales

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 03 August 2022; Ref: scu.197911

In re Lines Bros Ltd: CA 1982

The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the Swiss Franc, the creditor bank, on converting their Sterling dividends into Swiss Francs, received only 58.7% of the 18.5 million Swiss Francs owed to them by the company. The bank sought to recover the loss from the surplus after paying all the provable debts. The liquidators applied to the English court for directions.
Held: The bank’s foreign currency debt was properly converted at the date the resolution was passed to wind up the company and they were not entitled to further participate in the assets of the company.
A winding up petition is sui generis, being in the nature of a wider legal proceeding available for the collective enforcement of the admitted or proved debts of the company for the benefit of the general body of creditors on a pari passu basis. The court may incidentally in the course of bankruptcy proceedings have to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these are incidental procedural matters and not central to the purpose of the proceedings.
Brightman LJ said (obiter) that he had ‘not heard any convincing objection’ to the notion that, in a solvent liquidation, the liquidator should ‘make good the shortfall before he pays anything to the shareholders’.

Judges:

Brightman, Lawton and Oliver LJJ LJ

Citations:

[1983] Ch 1, [1982] 2 WLR 1010, [1982] 2 All ER 183

Jurisdiction:

England and Wales

Cited by:

Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 03 August 2022; Ref: scu.197913

In Re Buckingham International Plc: ChD 20 Nov 1997

There is no power in the court to make any arrangement which will result in the preference of one set of creditors over others of the same class.

Citations:

Times 20-Nov-1997

Statutes:

Insolvency Act 1986 183(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – In re Buckingham International Plc and In the Matter of Insolvency Act 1986; Mitchell v Buckingham International Plc CA 16-Feb-1998
. .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 03 August 2022; Ref: scu.81762

Stein v Blake: HL 18 May 1995

Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while attempting to pursue a claim against someone else. In some cases, the bankruptcy will itself have been caused by the failure of the other party to meet his obligations. In many more cases, this will be the view of the bankrupt. It is not unusual in such circumstances for there to be a difference of opinion between the trustee and the bankrupt over whether a claim should be pursued. The trustee may have nothing in his hands with which to fund litigation. Even if he has, he must act in the interests of creditors generally and the creditors will often prefer to receive an immediate distribution rather than see the bankrupt’s assets ventured on the costs of litigation which may or may not yield a larger distribution at some future date. The bankrupt, with nothing more to lose, tends to take a more sanguine view of the prospects of success. In such a case the trustee may decide, as in this case, that the practical course in the interests of all concerned (apart from the defendant) is to assign the claim to the bankrupt and let him pursue it for himself, on terms that he accounts to the trustee for some proportion of the proceeds.
It is understandable that a defendant who does not share the bankrupt’s view of the merits of the claim may be disappointed to find that notwithstanding the bankruptcy, which he thought would result in a practical commercial decision by an independent trustee to discontinue the proceedings, the action is still being pursued by the bankrupt. His disappointment is increased if he finds that the bankrupt as plaintiff in his own name has the benefit of legal aid which would not have been available to the trustee. Similar considerations apply to an assignment of a right of action by the liquidator of an insolvent company to a shareholder or former director. In such a case there is the further point that the company as plaintiff can be required to give security for costs. The shareholder assignee as an individual cannot be required to give security even if (either because he does not qualify or the Legal Aid Board considers that the claim has no merits) he is not in receipt of legal aid’.

Judges:

Lord Keith of Kinkel, Lord Ackner, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Hoffmann

Citations:

Independent 19-May-1995, Times 19-May-1995, [1996] 1 AC 243, [1995] UKHL 11, [1995] 2 All ER 961, [1995] 2 WLR 710, [1995] 2 BCLC 94

Links:

Bailii

Statutes:

Insolvency Act 1986 323

Jurisdiction:

England and Wales

Citing:

Appeal from – Stein v Blake CA 13-May-1993
The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision . .

Cited by:

Applied – Circuit Systems Ltd (In Liquidation) and Another v Zuken Redac (Uk) Ltd CA 5-Apr-1996
The assignment of a debt by a company in liquidation to a significant shareholder, in order to allow him to make an application for legal aid, and to avoid having to give security for costs and to allow the action to proceed was not unlawful, but . .
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Cited – Secretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Cited – Fuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .
See Also – Stein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
See Also – Stein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
See Also – Stein v Blake ChD 31-Oct-2000
When a Legal Aid certificate was withdrawn, leading to an opposing party suffering abortive costs in continuing the action, it was not a duty of the Legal Services Commission to inform the opposing side. They would have no access to arrangements . .
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Legal Aid

Updated: 03 August 2022; Ref: scu.89537

In re Gray’s Inn Construction Co Ltd: CA 1980

After the presentation of a petition for the winding up of the company moneys were paid in and out of the company’s bank account which was overdrawn. The liquidator issued a summons for a declaration that the amounts credited and/or debited to the account by the bank during the relevant period constituted dispositions of the company’s property which were void under s.227 of the Companies Act 1948. The liquidator further sought an order that the bank pay those moneys to the liquidator as constituting dispositions of the property of the company.
Held: In the exercise of the court’s discretion whether to make a validation order, the overriding principle is that the court must always do its best to ensure that the interests of the unsecured creditors will not be prejudiced. On an application for a validation order in the period between the presentation of the petition and its hearing, the court will need to be satisfied that it is in the interests of the creditors generally that the transaction should be allowed to proceed.
Buckley LJ said: ‘When a customer’s account with his banker is overdrawn he is a debtor to his banker for the amount of the overdraft. When he pays a sum of money into the account, whether in cash or by payments in of a third party’s cheque, he discharges his indebtedness to the bank pro tanto. There is clearly in those circumstances, in my judgment, a disposition by the company to the bank of the amount of the cash or of the cheque.’
After stating that in the case before the court the company’s account with the bank was overdrawn, he said: ‘Mr Heslop does not dispute that all payments out of the company’s account to third parties, not being payments to agents of the company as such are dispositions of the company’s property; . . That all such payments out must be dispositions of the company’s property is, I think, indisputable . .’

Judges:

Buckley, Goff LJJ and Sir David Cairns

Citations:

[1980] 1 WLR 711

Statutes:

Companies Act 1948 227

Jurisdiction:

England and Wales

Cited by:

Cited – Rose v AIB Group (UK) plc and Another ChD 9-Jun-2003
The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Banking

Updated: 31 July 2022; Ref: scu.184534

Secretary of State for Employment v Spence: CA 1986

The employers went into receivership in November 1983. A number of the employees were made redundant but the receiver hoped to carry on with the remaining workforce until February. However, a major customer threatened to withdraw its custom unless the undertaking had been sold as a going concern by 24 November. Negotiations for a sale could not be completed in the time available and on 28 November, the remaining workforce was dismissed with immediate effect at 11 am. They were, however, told to return at 2 p.m. when it was hoped that an agreement might be reached with the purchaser. At 2 p.m. the workforce were told to report for work the following morning when they were re-employed, being given fresh contracts of employment. The employees claimed redundancy payments. The Industrial Tribunal held that there had been no transfer of an undertaking within the meaning of Regulation 3 of TUPE and no continuity of employment. Alternatively the regulations did not apply because the workforce were not employed ‘immediately before the transfer’ within the meaning of Regulation 5(3). The Secretary of State appealed. The appeal was dismissed by the EAT.
Held: The SS appeal was again dismissed. Employees who are subject to a Continuation Order remain ex-employees, whose contracts have terminated, and there is no subsisting contract of employment upon which Regulation 5(1) can have any effect. The court construed the regulations with the EEC Directive. As the applicants’ contracts of employment did not subsist at the moment of transfer, they had been dismissed before the relevant transfer and were entitled to redundancy payments.
Lord Justice Balcombe said: ‘If a person is dismissed because of the transfer, either the impending transfer or one which has already taken place, then he is given specific rights under Regulation 8. Applying that construction of Regulation 5 to the facts of the present case, it is clear that the applicants were dismissed before the relevant transfer. Their contracts of employment were not existing at the moment of the transfer. There was nothing on which Regulation 5 could bite and accordingly the Secretary of State is liable for redundancy payments.’

Judges:

Lord Justice Balcombe

Citations:

[1986] ICR 651, [1987] QB 179

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 5(1), EEC Directive No. 77/187

Jurisdiction:

England and Wales

Cited by:

Cited – M Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
Cited – Lassman and Others v Secretary of State for Trade and Industry CA 19-Apr-2000
The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further . .
Cited – Brook Lane Finance Co Ltd v Bradley EAT 1988
Popplewell J said: ‘We are however faced with what, at any rate, appear to be two conflicting Court of Appeal decisions. It is clear to us that ‘the time of transfer’ must be construed in the same way in relation to the Employment Protection . .
Lists of cited by and citing cases may be incomplete.

Employment, European, Insolvency

Updated: 31 July 2022; Ref: scu.195720

Re Humberstone Jersey Ltd: CA 24 Jan 1977

A manufacturing company was supplied with machines on terms that they were to be installed within 30 days. The installation was not completed for another 6 months and the company claimed damages for breach of contract. The supplier served a statutory demand on the company for the cost of the machines and petitioned on the basis of that debt.
Held: Because of the unquantified claim by the company for damages, the supplier could not rely on the statutory demand. It was not possible to say that there was any quantified sum due, indeed it was possible that nothing was owed.

Judges:

Scarman LJ

Citations:

(1977) 74 LS Gaz 711

Jurisdiction:

England and Wales

Cited by:

Cited – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 31 July 2022; Ref: scu.184799

Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd and Another: ChD 28 Jul 2009

The parties had entered into complicated financial arrangements effectively providing credit insurance. On the insolvency of Lehman brothers, a claim was made.
Held: The contractual provisions were effective as a matter of English law and, in particular, did not offend the anti-deprivation rule. The Collateral was bought by the Issuer with the money subscribed by the Noteholders. It was not derived directly or indirectly from LBSF. The court should not be astute to interpret commercial transactions so as to invalidate them, particularly when doubt might be cast on other long-standing commercial arrangements. As long as the Swap Agreement was being performed it was appropriate for LBSF to have security for the obligations of the Issuer in priority to security in respect of the Issuer’s obligations to the Noteholders, but the intention of all parties was that the priority afforded to LBSF was conditional on LBSF continuing to perform the Swap Agreement.
If, alternatively, the provisions were capable of offending the anti-deprivation rule, the rule was not engaged because an alternative Event of Default (the Chapter 11 filing by LBHI) had occurred prior to the Chapter 11 filing by LBSF, and consequently the Chapter 11 filing did not deprive LBSF of any property.

Judges:

Sir Andrew Morritt Ch

Citations:

[2009] 2 BCLC 400, [2009] BPIR 1093, [2009] EWHC 1912 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Butters and Others v BBC Worldwide Ltd and Others ChD 20-Aug-2009
In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one. . .
Appeal from – Perpetual Trustee Company Ltd and Another v BNY Corporate Trustee Services Ltd and Others CA 6-Nov-2009
The court considered the extent of the so-called anti-deprivation rule which would avoid a contract designed to deprive creditors of an asset on the insolvency of a party to the contract. The claimant appealed a finding that the rule did not apply . .
At First Instance – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 30 July 2022; Ref: scu.368645

Brazzill and Others v Willoughby and Others: ChD 10 Jul 2009

Judges:

Peter Smith J

Citations:

[2009] EWHC 1633 (Ch), [2010] 1 BCLC 673

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal from – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 30 July 2022; Ref: scu.347487

Innovate Logistics Ltd v Sunberry Properties Ltd: CA 18 Nov 2008

Citations:

[2008] EWCA Civ 1321, [2008] NPC 129, [2009] BCC 164, [2009] 1 BCLC 145

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

See Also – Innovate Logistics Ltd v Sunberry Properties Ltd (Orders) CA 18-Nov-2008
. .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 30 July 2022; Ref: scu.278345

The Admiralty v Blair’s Trustee: SCS 10 Dec 1915

Bankruptcy – Sequestration – Crown – Claims – Preference – Damages for Breach of Contract Payable to Admiralty – Prerogative Right of Crown to Preferential Ranking
In a sequestration the Lords Commissioners of the Admiralty claimed a preferential ranking in respect of a sum due as damages for failure by the bankrupt to fulfil a contract made with them. The trustee on the sequestrated estate rejected the claim for preferential ranking, but admitted the debt to an ordinary ranking.
Held that the trustee was right in refusing the claim to a preferential ranking and in admitting the debt to an ordinary ranking.
Scots and English law are not necessarily the same as regards the use of prerogative powers

Citations:

[1915] SLR 188, 1916 1 SLT 19, 1916 SC 247

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 28 July 2022; Ref: scu.618239

Keene (Trustees of The Graphic Reproduction Federation) v Wellcom London Ltd and Others: ChD 30 Jan 2014

The Trustees sought (1) a declaration that the Federation was spontaneously dissolved at some stage between 1987 and now (2) alternatively an order dissolving the Federation pursuant to the Court’s inherent jurisdiction and (3) directions as to how and to whom the Federation’s assets should be distributed.

Judges:

Peter Smith J

Citations:

[2014] EWHC 134 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 28 July 2022; Ref: scu.520823

Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 8 Mar 2011

The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the applicants to be withheld from public disclosure. The disclosure of their identities would be inconsistent with that order and would undermine the confidentiality which the proceedings were intended to preserve.
The court must have regard not only to the justice of its decision, but also to the justice of the procedures by which it gives it. It therefore had the inherent power, in his opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of that party’s identity would constitute an injustice to him.

Judges:

Lord Reed

Citations:

[2011] ScotCS CSIH – 18, 2011 GWD 12-272, 2011 SLT 733

Links:

Bailii

Statutes:

Companies Act 2006 899

Jurisdiction:

Scotland

Citing:

See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 29-Jan-2010
. .
See Also – The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 28-Apr-2010
. .

Cited by:

Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Litigation Practice

Updated: 28 July 2022; Ref: scu.430401

Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 29 Jan 2010

Citations:

[2010] ScotCS CSIH – 6, 2010 SLT 459, GWD 7-117, 2010 SCLR 167, 2010 SC 349

Links:

Bailii

Statutes:

Companies Act 2006 896 899

Jurisdiction:

Scotland

Cited by:

See Also – The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 28-Apr-2010
. .
See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 28 July 2022; Ref: scu.396467

Remblance v Octagon Assets Ltd: CA 17 Jun 2009

A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, and should provide similar relief to a guarantor.
Held: (Mummery LJ dissenting) The appeal succeeded. The tenant complained of an interference with its right to quiet enjoyment, and its claim was arguable. A right of set off was expressly excluded by the lease, and therefore the guarantor had to rely in the judge’s discretion. The judge would have granted such relief but for the fact that the guarantor was in a position to pay. He was wrong to do so: ‘In view of the fact that JBR has a counterclaim which may exceed the arrears of rent, it is likely, assuming that the Insolvency Rules applied to it, that it would be able successfully to rely upon rule 6.5(4) (a) to set the statutory demand aside because it would be unjust not to do so. Having regard to the co-extensive nature of the guarantor’s liability, and the underlying need for comparable treatment being afforded under rule 6.5(4) (d), justice demands similar treatment for Mr Remblance.’

Judges:

Lord Justice Ward, Lord Justice Mummery and Lord Justice Dyson

Citations:

[2009] EWCA Civ 581, Times 27-Jul-2009, [2009] WLR (D) 196, [2010] Bus LR 119, [2009] NPC 79, [2009] BPIR 1129

Links:

Bailii, WLRD

Statutes:

Insolvency Rules 1986 6.5, Insolvency Act 1986 267(2)(c)

Jurisdiction:

England and Wales

Citing:

Cited – Altonwood Ltd v Crystal Palace FC (2000) Ltd ChD 7-Mar-2005
The landlord claimed arrears of rent and other payments due under the lease of the football ground occupied by the club. A licence had been granted for the accomodation to be shared with Wimbledon Football Club. The rent varied with the gate . .
Cited – Chan v Appasamy 2008
The test for the exercise of the discretion to set aside a statutory demand is whether there are circumstances which would make it unjust for the statutory demand to give rise to insolvency consequences in the particular case. . .
Cited – Budge v AH Budge (Contractors) Ltd CA 1997
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Continental Illinois National Bank and Trust Company of Chicago v John Paul Papanicolaou (The Fedora) CA 1986
The court considered the effect of a guarantee clause.
Held: The provisions of the guarantee went to timing and cash flow rather than liability. A term excluding a right of set-off is not to be treated in the same way as an exclusion clause. . .
Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .
Cited – Garrow v Society of Lloyd’s ChD 18-Jun-1999
Lloyds sought to claim against the Names on a ‘pay now, sue later’ clause.
Held: The power to order a stay of execution for possession remained and could be exercised in an appropriate case even though a cross-claim under which it was . .

Cited by:

Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 28 July 2022; Ref: scu.347014

AES Barry Ltd v Txu Europe Energy Trading: ChD 15 Jul 2004

Patten J considered whether to grant consent to a monetary action against the company now in administration, and said: ‘it will be in exceptional cases that the Court gives a creditor whose claim is simply a monetary one, a right by the taking of proceedings to override and pre-empt that statutory machinery.’

Judges:

Patten J

Citations:

[2004] EWHC 1757 (Ch), [2005] 2 BCLC 22

Links:

Bailii

Statutes:

Insolvency Act 1986 11(3)

Jurisdiction:

England and Wales

Cited by:

Cited – McCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration) ChD 22-Apr-2010
The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 26 July 2022; Ref: scu.346727

Lombard North Central Plc v Stewart and Another: SCS 27 May 2009

The pursuers sought a decree for payment against the first and second named defenders in the action. The second named defender is the appellant. The claim rested on a guarantee, signed by both of the defenders, under which they guaranteed to pay to the pursuers any outstanding amount due, under a lease purchase agreement entered into by the pursuers and Mailstream Packaging Limited, in the event that the latter company was unable to pay. The pursuers averred in the action that they had called upon Mailstream Packaging Limited to make payment, but that the company was no longer trading.

Judges:

Lord Osborne, Lord Nimmo Smith, Lady Dorrian

Citations:

[2009] ScotCS CSIH – 41

Links:

Bailii

Jurisdiction:

Scotland

Contract, Insolvency

Updated: 26 July 2022; Ref: scu.346596

Lovett and Another v Carson Country Homes Ltd and Others: ChD 1 May 2009

The applicant said that a signature on a debenture purporting to be his was a forgery. It was argued that the section was capable of validating the signature even if it was a forgery.
Held: The appointment of the administrators under the deed was effective. The applicant had not signed the deed. He had however allowed previous documents to be signed by his partner in his name where he knew of the transaction. In this case he did not. The Act however protected a ‘purchaser’ where it purported to be properly signed, as this document had. The bank was a ‘puchaser’ within section 44(5). ‘Purports’ in subsection (5) ‘operates to refer to the impression a document conveys’ focusing on what appears to be the case rather than what actually is the case.

Judges:

Davis J

Citations:

[2009] EWHC 1143 (Ch), [2009] BCLC 196

Links:

Bailii

Statutes:

Companies Act 2006 44

Jurisdiction:

England and Wales

Cited by:

Cited – Williams and Others v Redcard Ltd and Others CA 20-Apr-2011
The parties disputed whether the defendant company had effectively executed a contract for the sale of land. Two authorised signatories of the company had signed it, but there was no wording to attribute their acts to the company.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 26 July 2022; Ref: scu.346318

Re a Debtor: ChD 1994

The ordinary procedure of an insolvency involves two-stage, a statutory demand followed by a bankruptcy petition. The service of a ‘statutory demand’ in the prescribed form is simply one means of establishing ‘inability to pay’. The procedure is intended to be brief, and is aimed at establishing an inability to pay and no more. It is not a general sieve where the court considers generally whether the petition will succeed or fail. At the petition stage the court may consider the reasonableness of an offer to secure or to compound as required by section 271(3). At that stage the court looks at whether the debtor is able to pay all his debts and looks at the debtor’s contingent and prospective liabilities.

Judges:

Jacobs J

Citations:

[1994] 1 WLR 917

Statutes:

Insolvency Act 1986 268(1)(a) 271(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Owo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 26 July 2022; Ref: scu.182733

In Re Sutton (Removal of Liquidator): ChD 17 Oct 1997

The insolvency practitioner held many appointments. His partnership in a large firm of accountants ended suddenly. He did not have the resources to handle the cases, and nor could acceptable arrangements be made for him to have access to the related files within the firm. An application was made by another partner in the firm for his removal.
Held: Removal of a liquidator was for cause shown. That cause could include a supervening inabilityy to conduct the case. The power to apply for the removal of liquidator from his position was not limited to the liquidator and or creditors. Here it was appropriate for an application to be made by a partner in the liquidator’s firm. That firm had day to day conduct of the insolvency. The order would avoid the need for a creditors’ meeting with the accompanying substantial costs.

Judges:

Blackburne J

Citations:

Times 03-Nov-1997, Gazette 12-Nov-1997

Statutes:

Insolvency Act 1986 108(2) 172(2)

Jurisdiction:

England and Wales

Citing:

Distinguished – In re Sankey Furniture Ltd, ex parte Harding; Re Calorifique Limited, ex parte Betts ChD 1995
Separate applications were made by liquidators of companies in variously voluntary or compulsory liquidation and otherwise. . .
Cited – In re Parkdawn Ltd ChD 1993
The section provided sufficient power to allow a court to appoint a new liquidator in the case of a company’s liquidation. Though there is no express power, one is assumed within the insolvency rules. . .
Cited – Re Bullard and Taplin Ltd ChD 1996
Tne question of whether there was at any time ‘pending court proceedings’ was answered by asking if there existed a court file. The section empowered a court itself to appoint another trustee in bankruptcy. Section 41 of the 1984 Act could be used . .
Cited – Re Bridgend Goldsmiths Limited and Others ChD 1995
The High court may not exercise its jurisdiction under section 263 of the 1986 Act within a voluntary arrangement within the county court. . .
Cited – John Abbott and others No 00137 of 1997 ChD 1997
Having exercised its power under s41 to remove liquidators and supervisors, the court had power itself to appoint replacement officers. The existing practitioner had ceased to hold the appropriate authorisation. . .
Cited – Re Adams (AB) Builders Limited 1991
An insolvency practitioner who had lost his power to act applied to the court to be removed from his positions as liquidator in several creditors voluntary liquidations. . .
Cited – Re Stella Metals Limited and Others (In liquidation) 1997
Application was made for the replacement of a number of insolvency practitioners by the Insolvency Practitioners Association Ltd.
Held: The association might as a recognised body, have locus standi to apply to the court, but it was not a . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 25 July 2022; Ref: scu.82212

In Re Norditrack (UK) Ltd: ChD 11 Nov 1999

A voluntary winding up is deemed to take place when the resolution for it was passed. The practice of passing such a resolution to take effect only upon the revocation of an administration order was ineffective. The correct way was for an order regarding the administration to be made but held pending notification of the passing of the resolution by the company.

Judges:

Arden J

Citations:

Times 11-Nov-1999

Statutes:

Insolvency Act 1986 86

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 25 July 2022; Ref: scu.82073

Visciano v Istituto nazionale della previdenza soziale: ECJ 2 Apr 2009

ECJ Social policy Approximation of laws Protection of employees in the event of employer insolvency – Directive 80/987 / EEC Obligation to pay claims arising from an employment relationship within the limit of a ceiling legal nature of the claims employed person in respect of the guarantee institution limitation periods general Principles of law Principles of equivalence and effectiveness of equality principle

Citations:

C-69/08, [2009] EUECJ C-69/08

Links:

Bailii

Statutes:

Directive 80/987/EEC

Cited by:

Opinion – Visciano v Istituto nazionale della previdenza soziale ECJ 16-Jul-2009
ECJ Social policy Protection of workers Insolvency of employer Directive 80/987/EEC Obligation to pay all outstanding claims up to a pre-established ceiling Nature of an employee’s claims against a guarantee . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Insolvency

Updated: 24 July 2022; Ref: scu.342052

In Re A Company (No 007946 of 1993): ChD 18 Nov 1993

A Northern Ireland company can be wound up in England and Wales if its principal place of business had been in England and Wales. The company incorporated in Northern Ireland became insolvent. It sought to strike out the Secretary of State’s petition under 124A, and said it could not apply to a Northern Ireland Company.
Held: The definition of an incorporated company included a company incorporated anywhre in the UK.

Judges:

Morritt J

Citations:

Times 18-Nov-1993, Gazette 02-Mar-1994, [1994] 2 WLR 439

Statutes:

Insolvency Act 1986 124A 220

Jurisdiction:

England and Wales

Insolvency, Company, Northern Ireland

Updated: 24 July 2022; Ref: scu.81640

Payless Cash and Carry Ltd v Patel and Others: ChD 29 Jul 2011

The claimant company, in liquidation, claimed large sums from the first defendant as a director who wrongfully and fraudulently caused it to incur a liability to HMRC for wrongfully claimed input tax on various liquor purchases.
Held: Mann J said: ‘It was no part of the liquidator’s case that there was no trade at all in beer and wine. It was not necessarily part of her case that there was no trade at all with the missing traders. Her case was, whatever trade there may or may not have been, it was not the trade reflected in the disputed input tax claims. There are various possibilities, including different trade with the missing traders at a different level and not involving VAT; trading with other completely different entities, free of VAT, for which the documentary trade with the missing traders is a cover; or no trade at all. There are doubtless other possibilities. The liquidator does not seek to prove any of them. She is entitled to adopt that stance of saying that the purported trade with the missing traders did not take place as documented, and does not have to go further and work out what was actually going on in Payless. As I have observed, in many cases the proof of a fraud will, in practice, require it to be demonstrated what the context of the fraud was – otherwise the fraud is less plausible – but it is not an absolute necessity and in the present case the evidence that the purported trades were not genuine is sufficiently strong that the inability to complete the actual trading picture does not detract from the inferences that are to be drawn from the primary facts as I have found them to be.’

Judges:

Mann J

Citations:

[2011] EWHC 2112 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Revenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, VAT

Updated: 24 July 2022; Ref: scu.442578

In Re Williams (A Bankrupt): ChD 25 Jun 1997

Repeated adjournments of a bankruptcy petition are inappropriate where there was no prospect of the bankrupt making full repayment within a reasonable time. This had the effect of creating an ad hoc voluntary arrangement.

Citations:

Gazette 25-Jun-1997, Times 16-Jul-1997

Jurisdiction:

England and Wales

Insolvency

Updated: 24 July 2022; Ref: scu.82293

In Re A Debtor (No 90 of 1997): ChD 1 Jul 1998

Ordinarily the court would avoid two actions on similar facts where inconsistent decisions might be reached, but where issues on setting aside a statutory demand were genuinely separate, the separate actions could continue.

Citations:

Times 01-Jul-1998

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.5.4(d)

Jurisdiction:

England and Wales

Insolvency

Updated: 24 July 2022; Ref: scu.81672

In Re A Company (No 008174 of 1999): ChD 2 Nov 1999

Where a school made teachers redundant because of insolvency, and gave notice to teachers to the end of the summer term, that was to include the summer holidays, and the pay until the end of the holidays was properly claimable against the school, and if necessary against the Secretary of State. The holiday related to the preceding term and the contract made it payable.

Citations:

Times 02-Nov-1999

Statutes:

Insolvency Act 1986 19(6)

Jurisdiction:

England and Wales

Employment, Insolvency

Updated: 24 July 2022; Ref: scu.81643

In Re A Debtor (2672 of 2000): ChD 2 Nov 2000

More than six years after a costs order, the creditor began bankruptcy proceedings for unpaid costs. The debtor claimed the debt was time barred. The court found that the time started when the judgment became enforceable. As regards an order for costs, that happened only when the amount was fixed by taxation. The six year period had not expired with respect to that date.

Citations:

Gazette 02-Nov-2000, Times 05-Dec-2000

Statutes:

Limitation Act 1980 24

Jurisdiction:

England and Wales

Insolvency, Costs, Limitation

Updated: 24 July 2022; Ref: scu.81648

In Re A Debtor (No 647-Sd-1999): ChD 10 Apr 2000

A statutory demand by the Inland Revenue, which was based upon a debt which was statute barred, was not supportable and had to be set aside. The demand was based upon the judgement obtained by the Inland Revenue, and not upon the underlying tax debt. The limitation arrangements were different.

Citations:

Times 10-Apr-2000

Statutes:

Limitation Act 1980 37(2)

Jurisdiction:

England and Wales

Insolvency

Updated: 24 July 2022; Ref: scu.81666

In Re ASRS Establishment Ltd (In Administrative Receivership and Liquidation): ChD 17 Nov 1999

Although the parties should be free to make the agreement they wanted to, and the court should listen, that would not mean that assets which were incapable of being made subject to a fixed charge could be made so by the joint intention of the parties.

Citations:

Times 17-Nov-1999

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 24 July 2022; Ref: scu.81699

In Re Banco Nacional De Cuba: ChD 7 Jun 2001

Where it was alleged that shares in a UK company had been sold at an undervalue, so as to allow a challenge in insolvency proceedings, the leave of the court was still required if the pleadings were to be served abroad. When the court considered such an application, it had to look not just at the fact that the property to which the claim related is in the jurisdiction, but also at reality of the extent of the connection with the UK, and the difficulties if any of enforcement. Here the claimant had not demonstrated that the purpose of the transaction might be to defeat creditors, and one would, in its own jurisdiction, enjoy immunity from enforcement. Section 423 ‘extends to any claim for relief, whether for damages or otherwise, so long as it is related to property located within the jurisdiction’ and ‘the claim under section 423 relates to the shares and particularly the disposition of the shares.’ By CPR 6.20(10) the court may assume jurisdiction if the whole subject-matter of the claim relates to property situated in England.
Lightman J: ‘The critical differences between RSC, O 11, r 1(1)(g) and CPR 6.20(10) is the substitution for the words ‘land situate within the jurisdiction’ of the words ‘relates to property located within the jurisdiction’. The implications are that: (1) the rule is no longer limited to land and now extends to personal property; and (2) instead of the whole claim having to be confined to a claim to a proprietary or possessory interest, it is sufficient that the whole claim relates to property. The evident purpose of the new rule is to lay down a single rule in place of the three earlier rules which embraces and extends beyond the contents of those rules. It is to be noted that at p 128 of the Autumn 2000 Civil Procedure (‘White Book’) the comment is made on CPR 6.20(10): ‘This wide and new provision is no longer confined to land and the old cases are redundant.’ In my view on its proper construction the rule cannot be construed as confined to claims relating to the ownership or possession of property. It extends to any claim for relief (whether for damages or otherwise) so long as it is related to property located within the jurisdiction. This construction vests in the Court a wide jurisdiction, but since the jurisdiction is discretionary the Court can and will in each case consider whether the character and closeness of the relationship is such that the exorbitant jurisdiction against foreigners abroad should properly be exercised.’

Judges:

Lightman J

Citations:

Times 18-May-2001, Gazette 07-Jun-2001, [2001] 1 WLR 2039

Statutes:

Civil Procedure Rules 6.20., Insolvency Act 1986 423

Jurisdiction:

England and Wales

Cited by:

Cited – Shahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Ashton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Lists of cited by and citing cases may be incomplete.

International, Civil Procedure Rules, Insolvency, Litigation Practice

Updated: 24 July 2022; Ref: scu.81730

In Re A Debtor (No 87 of 1999); Debtor v Johnston: ChD 14 Feb 2000

It was possible for a debtor, faced with a statutory demand, to seek to set up a debt against the creditor by way of a set-off and cross-demand even though the claim was against the creditor in a different capacity. Here the creditor claimed in person but the demand was against her as executor in an estate. A delay in litigating the cross-demand was not itself a bar to setting it up. There was nothing in the new rules, or the old ones, to prevent such a tactic.

Judges:

Rimer J

Citations:

Times 14-Feb-2000, Gazette 17-Feb-2000, [2000] BPIR 589

Jurisdiction:

England and Wales

Cited by:

Cited – Popely v Popely ChD 25-Jul-2003
The claimant appealed refusal to set aside a statutory demand served by the defendant. The parties had become embroiled in criminal proceedings and the defendant sought recovery of assets from the claimant. In those proceedings a costs order had . .
Cited – Dennis Rye Ltd v Bolsover District Council CA 6-May-2009
Right to raise claim against rates insolvency
The ratepayer company sought leave to appeal and to challenge the use of insolvency proceedings to recover council tax. It said that it had a valid counterclaim.
Held: Leave was refused. ‘A company is not prevented from raising a cross-claim . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 24 July 2022; Ref: scu.81669