Category: Insolvency

Re a Debtor (No 2021 of 1995), ex parte Inland Revenue Commissioners v The Debtor: Re a Debtor (No 2022 of 1995), ex parte Inland Revenue Commissioners v The Debtor: ChD 20 Nov 1995

The creditor filed a notice of proxy by telephone. The Chairman of the creditor’s meeting refused to accept it. The creditor applied to the court.
Held: The rules required a signed proxy, but a faxed signature was acceptable. Forms of signature other than those done under hand had been accepted previously. The transmission of a letter by fax did not create any confusion by way of duplication. The chairman should have accepted the proxy by fax. A faxed signature fulfilled the statutory requirement, being a distinctive or personal marking placed there by authority of the creditor.

Judges:

Laddie J

Citations:

[1996] All ER 2 345

Links:

lip

Jurisdiction:

England and Wales

Insolvency

Updated: 29 June 2022; Ref: scu.174442

In re Beck Foods Ltd: Boston Borough Council v Rees and Bennett: CA 20 Dec 2001

The council appealed a decision that the administrative receivers of a company were not liable personally for the non-domestic rates otherwise incurred by a company during the receivership.
Held: The activities of the receiver or manager were not activities creating a ratable occupation. The original business owner remained in occupation for this purpose.

Judges:

Lord Justice Pill, And Lord Justice Jonathan Parker

Citations:

Times 15-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Civ 1934, [2002] 1 WLR 1304, [2002] BPIR 665, [2002] NPC 8, [2002] 2 EGCS 101, [2002] BCC 495, [2002] RA 23

Links:

Bailii

Statutes:

Insolvency Act 1986 35, Local Government Finance Act 1988 43(1)

Jurisdiction:

England and Wales

Citing:

Cited – Ratford v Northavon District Council CA 1986
The reality of the agency of a receiver is reflected in the continuity, after the appointment of receivers, of the rateable occupation of the mortgagor through the agency of the receivers. The possession of an agent is to be attributed to that of . .
Lists of cited by and citing cases may be incomplete.

Rating, Insolvency

Updated: 29 June 2022; Ref: scu.167309

Fleming v Yeaman: HL 7 Jul 1884

In a petition for sequestration of the estates of a debtor who had become notour bankrupt, the petitioning creditor founded on a debt forming the balance of an account-current and vouched by a number of I O U’s. It appeared from a letter of agreement by him which was produced, that he had agreed that until adjustment of the account between him and the debtor the I O U’s should be retained as vouchers of the account-current, ‘upon which I cannot sue you or do diligence for them against you.’ Held (aff. judgment of First Division) that the debtor having become notour bankrupt, the creditor was not debarred by this agreement from applying for sequestration, founding on the IOU’s as vouchers of the debt.
A charge was given on a decree obtained in the Court of Session against a debtor. The debtor was insolvent and the charge was allowed to expire without payment, but after its expiry the debtor presented an appeal to the House of Lords which he had intimated while the charge was current. Held ( aff. judgment of First Division) that there was notour bankruptcy under the statute which could not be affected by the appeal.

Judges:

Lords Blackburn, Watson, and Fitzgerald

Citations:

[1884] UKHL 722 – 1, 21 SLR 722 – 1

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 29 June 2022; Ref: scu.636746

In re Overnight Limited; Goldfarb v Higgins and Another: ChD 11 Feb 2009

The liquidator sought to commence an action for fraudulent trading against a former director, who responded that the claim was time barred.
Held: The claim arose when the winding-up order was made and not on any of the earlier dates suggested by the second respondent.

Judges:

Sir Andrew Morritt

Links:

Times

Statutes:

Insolvency Act 1986 213

Jurisdiction:

England and Wales

Insolvency, Limitation

Updated: 29 June 2022; Ref: scu.332832

Barca v Mears: ChD 2005

While the categories of exceptional case which might allow delay in the sale of a bankrupt’s property are not circumscribed by the previous case-law, the only cases subsequent to In Re Citro in which orders for possession and sale have been withheld for substantial periods are cases in which either the bankrupt or his or her spouse was terminally or very seriously ill.

Judges:

Mr Nicholas Strauss QC

Citations:

[2005] BPIR 15

Jurisdiction:

England and Wales

Citing:

Cited – Re Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks CA 1991
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been . .

Cited by:

Cited – Donohoe v Ingram ChD 20-Jan-2006
The appellant had lived with the bankrupt for several years, and sought an order delayng sale of the house they had lived in until their children had grown up. She said the circumstances were exceptional.
Held: The fact that the delay might . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 June 2022; Ref: scu.238751

Ultraframe (UK) Ltd v Rigby and others: CA 19 Jan 2005

Appeal against strike out of application to have set aside deeds of assignment.

Judges:

Brooke VP, Arden LJJ

Citations:

[2005] EWCA Civ 276

Links:

Bailii

Statutes:

Insolvency Act 1986 167(3) 168(5)

Jurisdiction:

England and Wales

Citing:

Cited – In Re Edennote Ltd; Tottenham Hotspur plc v Ryman CA 21-May-1996
The company was in liquidation. Terence Venables, who had owned the shares, had taken an assignment of a cause of action against the football club. The court had set aside that assignment, and removed the liquidator. Venables now appealed saying . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 June 2022; Ref: scu.223682

John Louis Carter Fourie v Allan Le Roux and others: CA 7 Mar 2005

The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and should have taken account of cross claims. The defendant argued that the order was sought on a tactical basis and that the true litigation was in South Africa and was not concluded. The claimant did not seek independant relief here, and would not be issuing proceedings. The order had been discharged, and the claimant appealed the discharge.
Held: The order had properly been discharged for want of jurisdiction, in the absence of any genuine attempt to seek substantive relief in England. The order would be amended to allow further consideration of the costs award.

Judges:

The Vice-Chancellor Lord Justice Parker Lord Justice Mance

Citations:

[2005] EWCA Civ 204, Times 25-Apr-2005

Links:

Bailii

Statutes:

Insolvency Act 1986 426, Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Citing:

Cited – Hughes and others v Hannover Re Ruckversicherungs-Aktiengesellschaft CA 28-Jan-1997
An insolvency court answering an international call for assistance has the full range of remedies available to it. It may exercise ‘its own general jurisdiction and powers’ as well as the insolvency laws of England and the corresponding laws of the . .
Cited – Memory Corporation v Sidhu (No 2) CA 3-Dec-1999
Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too . .
Cited – Voice and Script International Ltd v Alghafar CA 8-May-2003
The court has a wide discretion whether to order the assessment of costs on an indemnity basis and the court of Appeal will rarely disturb the judge’s order as to costs.
Judge LJ said: ‘By treating the absence of allocation to track as . .
Cited – Said v Butt 1920
The plaintiff wanted to go to a play’s first night. He had fallen out with the management of the theatre, and knew that he would not get a ticket in his own name. He got a friend to go to the theatre and buy a ticket for him without disclosing the . .
Cited – Shaker v Al-Bedrawi and others CA 18-Oct-2002
. .
Cited – MCA Records Inc v Charly Records Ltd and others (No 5) CA 29-Nov-2001
Thre had been an action for copyright and trade mark infringement. The court considered the personal liability of directors of the company for the costs of the action. . .
Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Appeal from – Fourie v Le Roux and Others ChD 30-Sep-2004
Interim asset freezing injunctions had been obtained on the application of a liquidator in South Africa. The defendant applied for their discharge.
Held: They should be discharged. No foreign proceedings had been specified for which they were . .

Cited by:

Appeal from – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insolvency

Updated: 29 June 2022; Ref: scu.223273

Freakley and Curzon Insurance Ltd v Centre Reinsurance International Company and Another; similar: CA 11 Feb 2005

Claims were made for personal injury caused by asbestos. The re-insurers sought declaratory relief against the head insurers, and the administrators of the insolvent company. The administrators sought declarations in turn. Curzon insured the company for ultimate net loss, and then had re-insurance with Centre Reinsurance. Ultimate net loss meant all sums paid out less substantial excesses, but control of the claims was transferred to the insurer if the principal company became insolvent. A re-organisation was intended to be created so as to ring fence the company’s liabilities.
Held: The provision transferring control of the claim to the insurers meant that the re-insurance contract was voided by the 1930 Act. The phrase ‘the rights of third parties’ in s1(3) was to be construed to refer only to the rights of the parties in respect of the liability incurred by the insured to the third party, and further only those rights which if altered would give rise to a statutory transfer, and nullify the rights which the statute required to be transferred undiminshed. Parliament could not have intended to strike down provisions intended to put a third party in the same or a better position on a statutory transfer. As to claims handling costs, these were to be taken as part of the ultimate net loss, and the company was liable to reimburse the expenses incurred before the loss reached the retained limit.
Lord Justice Chadwick: ‘The relevant question . . is whether liabilities for claims handling expenses incurred on the instructions of the insurer – acting under the rights conferred by the policy . . are properly to be treated as liabilities incurred by the administrator in carrying out his functions . . ‘

Judges:

Lord Justice Chadwick Lady Justice Arden Lord Justice Latham

Citations:

[2005] EWCA Civ 115, Times 28-Feb-2005, [2005] 2 All ER (Comm) 65

Links:

Bailii

Statutes:

Third Parties (Rights Against Insurers) Act 1930 1(3)

Jurisdiction:

England and Wales

Citing:

Cited – Bradley v Eagle Star Insurance Co Ltd HL 1989
Mrs Bradley was employed by Dart Mill several times from 1933 and 1970 and acquired byssinosis from inhaling cotton dust. The company was wound up in 1975 and dissolved in 1976. In 1984 she applied to the court for pre-action disclosure under . .
Cited – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Cited – Cox v Bankside Members Agency Ltd and Others CA 16-May-1995
Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s . .
Cited – Firma CF-Trade SA v Newcastle Protection and Indemnity Association (the ‘Fanti’) QBD 1987
The court considered the effect of section 1(3) on a ‘pay to be paid’ clause in a re-insurance contract.
Held: If, as a matter of construction of the membership rules, the condition survived the making of a winding-up order – which he thought . .
Cited – Re Allobrogia Steamship Corporation 1979
The court considered the effect, on the insolvency of the insured, of ‘pay to be paid’ conditions in contracts of insurance. It was asked to order the winding-up of a foreign registered company. The company had to own assets within the jurisdiction . .
Cited – Socony Mobil Oil Co Inc v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (Fanti) CA 30-Nov-1989
The court considered appeals from conflicting interpretations of the effect of s1(3) of the 1930 Act on pay to be paid clauses in the event of the insolvency of the insured.
Held: The condition did not purport to avoid the contract or to alter . .
Cited – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (the ‘Padre Island’) (No 2) 1987
. .
Cited – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL 14-Jun-1990
The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
Cited – Re Harrington Motor Co Ltd, Ex parte Chaplin 1928
A person injured in a road accident had obtained judgment for damages against the company, but had been unable to enforce the judgment before the company went into liquidation. The company’s motor insurers paid the amount of the judgment to the . .
Appeal From – Centre Reinsurance International Co and Another v Curzon Insurance Ltd ChD 12-Feb-2004
It was a necessary part of the system of statutory transfers of insurance obligations under the Act, that the rights should be transferred before exhaustion of any policy excess, and notwithstanding the insolvency. The rights (inchoate at this . .

Cited by:

Appeal from – Freakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Insurance, Insolvency

Updated: 29 June 2022; Ref: scu.222782

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: Although a winding up petition is, in a general sense, a ‘proceeding in a court of law’ and that it is not proper to characterise it as the individual execution of a judgment obtained by a creditor of the company, the court remained bound by Lowsley and by Lamb.

Judges:

Lord Justice Brooke Vice-President Of The Court Of Appeal (Civil Division) Lord Justice Mummery And Lord Justice Scott Baker

Citations:

[2005] EWCA Civ 92, Times 24-Feb-2005

Links:

Bailii

Statutes:

Limitation Act 1980 38(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Ridgeway Motors (Isleworth) Ltd v Altis ChD 21-May-2004
The company sought to strike out a winding up petition presented by the respondents, saying a winding up petition was by way of an action, and was barred by statute after six years.
Held: A winding up petition was not an action within the . .
Cited – W T Lamb and Sons v Rider CA 1948
The judge at first instance had rescinded the master’s order giving leave to the judgment creditor to proceed to levy execution although six years had passed since the judgment. On appeal the judgment creditor challenged the validity of the rule of . .
Cited – Bennett v The Governor and Company of the Bank of Scotland CA 23-Jul-2004
The bank had obtained judgment against the defendant, but had failed to act upon it, and the judgment became unenforceable. It then began later proceedings on the original debt (still within the applicable limitation period). The defendant said this . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Cited – Re a Debtor ChD 1997
The creditor appealed the decision to set aside a statutory demand as statute barred.
Held: The appeal was dismissed. Bankruptcy proceedings based on a statutory demand for moneys due under a previous default judgment constituted ‘an action . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Berliner Industriebank Aktiengesellschaft v Jost 1971
The distinction ‘between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation.’ . .
Cited – Berkeley v Elderkin 1853
An action in the High Court on a debt proved in the County Court did not lie: ‘But where a specific remedy is provided for the recovery of such damages or sums of money, this mode of proceeding cannot be resorted to, as in the case of the new County . .
Cited – Re Overmark Smith Warden Ltd ChD 1982
An ordinary creditor’s cause of action for non-payment of a contract debt is barred after the expiration of 6 years from the date of the accrual of his cause of action. He is then no longer a creditor of the company and is neither entitled to . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 29 June 2022; Ref: scu.222613

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.

Judges:

Chadwick J

Citations:

[1995] 2 BCLC 594

Statutes:

Insolvency Rules 4.108 6.126

Jurisdiction:

England and Wales

Citing:

Followed – 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 by:

Distinguished – 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 . .
Cited – In Re A and C Supplies Limited ChD 17-Oct-1997
Applications were made for the removal of a liquidator from several appointments in corporate nd individual insolvencies. He had been a partner in a firm and that had ceased in a way which left it impossible to work with his former partners to . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 28 June 2022; Ref: scu.221538

Malcolm v Mackenzie, Allied Dunbar Plc: CA 21 Dec 2004

The bankrupt complained that having been made bankrupt, his self-employed pension was subject to attachment by his trustee, but had he been a member of a company scheme the asset would not, and that this was discriminatory.
Held: The differential treatment arose because contractual pension rights fell within a definition in the Act, and not from a difference in treatment of persons of different status. The appeal failed.

Judges:

Lord Justice Mummery Lord Justice Chadwick Lord Justice Tuckey

Citations:

[2004] EWCA Civ 1748, [2004] EWCA Civ 1748, Times 04-Jan-2005

Links:

Bailii

Statutes:

Welfare Reform and Pensions Act 1999 11

Jurisdiction:

England and Wales

Citing:

Appeal from – In re William Andrew Malcolm; William Andrew Malcolm v Benedict Mackenzie, Allied Dunbar ChD 26-Feb-2004
The bankrupt sought to protect his personal pension taken out before his bankruptcy. The bankruptcy was initiated by the Inland Revenue, and sought protection under Human Rights law.
Held: The alleged infringement of the former bankrupt’s . .
Cited – Dennison v Krasner, Lesser, Lawrence CA 6-Apr-2000
A retirement annuity or personal pension was part of a bankrupt’s estate before the recent Act, and vested immediately in the trustee on the bankruptcy. As such there was no need to make application to the court under s310 for an income payment . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – In Re Landau (A Bankrupt) ChD 1-Dec-1996
At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .
Cited – Kemble and Another v Kicks and Others; In Re the Trusts of the Scientific Investment Pension Plan ChD 5-Mar-1998
Provision in pension scheme withdrawing benefits to bankrupt beneficiary defeated trustees claim only if determinable or defeasible interest. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Human Rights, Financial Services

Updated: 28 June 2022; Ref: scu.221491

Al Sabah and Al Sabah v Grupo Torras SA Culmer as trustee of the property of Sheikh Fahad Mohammed Al Sabah, bankrupt: PC 11 Jan 2005

PC (Cayman Islands) The claimant complained of an order of the Court of Appeal of the Cayman Islands, requiring him to comply with a letter of request from the Grand Court of the Bahamas.
Held: In earlier times, Acts of the English parliament were readily held to apply throughout the Empire. Over time two other principles came to apply; that England should not interfere unasked in the laws of Commonwealth countries, and that laws passed at Westminster should not apply extra-territorially unless clearly intended to do so. In 1914 the Bahamas, Jamaica and the Cayman Islands were colonies, but each was acquired and governed differently, and had later taken different routes forward. After independence, the new insolvency laws of Jamaica were limited to applying also to the Cayman Islands. The Cayman legislation on this point appeared to have no effect. The 1985 Act did not repeal the application outside the UK of section 122 of the 1914 Act, which remained in effect, and the Cayman Islands had jurisdiction to make the order it had to comply with the letter of request.

Judges:

Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

Times 14-Jan-2005, [2005] UKPC 1

Links:

PC, Bailii

Statutes:

Bankruptcy Act 1914 122

Citing:

See Also – Grupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al Sabah and others (2) CA 21-Mar-1997
The Court of Appeal should interfere with Judge’s case management decisions only with great reluctance. . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al-Sabah Et Al CA 2-Oct-1997
A party choosing to provide discovery of substantial documents on a Compact Disk must ask the court first before charging extra for the service. . .
Cited – Grupo Torras SA and Another v Al-Sabah and others Lst CA 6-Feb-1998
. .
See Also – Barbara Alison Al-Sabah and Another v Grupo Torras S A and Others PC 10-Oct-2000
PC (Jersey) The board refused special leave to appeal: ‘Normally all such questions of case management are matters for the courts concerned and are not suitable for any further review before their Lordships’ . .
See Also – Khaled Naser Hamoud Al-Sabah and Juan Jose Folchi Bonafonte v Grupo Torras SA CA 2-Nov-2000
The court discussed the approach to be taken when asked to act upon evidence which it found to be unreliable, though the witness’s credibility had not been destroyed. In a claim for dishonest assistance it is not necessary to show a precise causal . .
See Also – Grupo Torras Sa and Another v Al-Sabah and others CA 30-Jul-2001
The hearing followed others concluding that the claimant had been defrauded of substantial sums by the defendants. The parties sought clarifications. . .
Cited – Callender, Sykes and Co v Colonial Secretary of Lagos PC 1891
Nigeria had no bankruptcy law of its own.
Held: The general vesting provisions of the Bankruptcy Act 1869 of the United Kingdom (and not merely provisions about reciprocal enforcement) applied in Nigeria. . .
Cited – Regina v Jameson 1896
As to possessions after acquired by occupancy, settlers from the parent country take their law with them into such possessions so far as they may reasonably be applied. . .
Cited – Re Hart, ex parte Green 1912
The original disposal by a debtor was prior to the act of bankruptcy, though the later transfer by the disponee to the defendant was after it.
Held: In such a case, the trustee could not succeed against a transferee for value without notice. . .
Cited – Re Dallhold Estates (UK) Pty Ltd ChD 1992
The court discussed the the receipt and acceptance of a letter of request: ‘The scheme of subsection (5) appears to me to be this. The first step is to identify the matters specified in the request. Secondly, the domestic court should ask itself . .
Cited – Hughes and others v Hannover Re Ruckversicherungs-Aktiengesellschaft CA 28-Jan-1997
An insolvency court answering an international call for assistance has the full range of remedies available to it. It may exercise ‘its own general jurisdiction and powers’ as well as the insolvency laws of England and the corresponding laws of the . .
Cited – Galbraith v Grimshaw and Baxter HL 2-Jan-1910
Where a Scottish sequestration occurred shortly after an English garnishee order nisi, the judgment creditor prevailed over the trustee in bankruptcy, although the result would have been different if both the attachment and the bankruptcy had . .
Cited – Re Osborn 1931
An Isle of Man trustee in bankruptcy was seeking the assistance of the English court in relation to the bankrupt’s immovable property in England.
Held: Section 122 was to be given a cautious interpretation. . .
Cited – Re A Debtor (Order in Aid No 1 of 1979) ex parte Viscount of the Royal Court of Jersey 1981
The court noted the differences in bankruptcy law between England and Jersey: ‘The word ‘bankruptcy’ in section 122, if indeed it refers at all to process of bankruptcy, must, in my judgment, be construed in a wide sense, for the section is designed . .

Cited by:

See Also – Grupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al Sabah and others (2) CA 21-Mar-1997
The Court of Appeal should interfere with Judge’s case management decisions only with great reluctance. . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al-Sabah Et Al CA 2-Oct-1997
A party choosing to provide discovery of substantial documents on a Compact Disk must ask the court first before charging extra for the service. . .
See Also – Grupo Torras SA and Another v Al-Sabah and others Lst CA 6-Feb-1998
. .
See Also – Barbara Alison Al-Sabah and Another v Grupo Torras S A and Others PC 10-Oct-2000
PC (Jersey) The board refused special leave to appeal: ‘Normally all such questions of case management are matters for the courts concerned and are not suitable for any further review before their Lordships’ . .
See Also – Khaled Naser Hamoud Al-Sabah and Juan Jose Folchi Bonafonte v Grupo Torras SA CA 2-Nov-2000
The court discussed the approach to be taken when asked to act upon evidence which it found to be unreliable, though the witness’s credibility had not been destroyed. In a claim for dishonest assistance it is not necessary to show a precise causal . .
See Also – Grupo Torras Sa and Another v Al-Sabah and others CA 30-Jul-2001
The hearing followed others concluding that the claimant had been defrauded of substantial sums by the defendants. The parties sought clarifications. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency

Updated: 28 June 2022; Ref: scu.221052

Marya v Southall Properties Ltd: CA 27 Mar 2001

Application to re-reinstate an application for permission to appeal

Citations:

[2001] EWCA Civ 909

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Southall Properties Ltd v Marya CA 27-Mar-2001
. .

Cited by:

See Also – Marya v Southall Properties Ltd (Re-instatement application) CA 27-Mar-2001
. .
See Also – Southall Properties Ltd v Marya CA 1-Mar-2002
. .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 28 June 2022; Ref: scu.218068

Marya v Southall Properties Ltd (Re-instatement application): CA 27 Mar 2001

Judges:

Arden LJ

Citations:

[2001] EWCA Civ 1150

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Southall Properties Ltd v Marya CA 27-Mar-2001
. .
See Also – Marya v Southall Properties Ltd CA 27-Mar-2001
Application to re-reinstate an application for permission to appeal . .

Cited by:

See Also – Southall Properties Ltd v Marya CA 1-Mar-2002
. .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 28 June 2022; Ref: scu.218067

In re Trident Fashions plc: ChD 5 Feb 2004

Creditors of the company sought relief, saying the voluntary arrengement made had been based upon the omission of material by the insolvency practitioner.
Held: A court could intervene in such a case only where the actions of the practitioner were such that no reasonable practitioner would do. When asked questions, the practitioner had to give fair and balanced answers.

Judges:

Lewison J

Citations:

Times 23-Apr-2004

Jurisdiction:

England and Wales

Citing:

Cited – Somji v Cadbury Schweppes Plc CA 20-Dec-2000
Where a party’s agreement to an individual voluntary arrangement had been obtained by an advantage offered to that creditor but not disclosed to others, the entire arrangement could be set aside. In this case the offer to purchase a debt after the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 28 June 2022; Ref: scu.196712

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 been made and that was the basis of the statutory demand. The claimant said that his counterclaim in the same proceedings exceeded the costs claim.
Held: The judge had failed to allow that he had a discretion because the counterclaim was within the same. The insolvency court could not itself hear the counterclaim, but instead only assessed whether it appeared genuine and serious. The error was so serious as to allow the instant court to make a substitutionary order allowing the appeal.

Judges:

Edward Bartley Jones QC

Citations:

Times 15-Sep-2003, Gazette 02-Oct-2003

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.5(4)(a)

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Seawind Tankers Corporation v Bayoil SA CA 12-Oct-1998
Although a company admitted a debt, it was nevertheless right to set aside a petition for winding up under that debt, where the company had an unquantified but greater counterclaim within the same proceedings, even if that claim could not presently . .

Cited by:

Appeal from – Popely v Popely CA 30-Apr-2004
The expression ‘cross-demand’ in rule 6.5(4)(a) did not imply any kind of procedural or juridical relationship to the debt subject to the statutory demand. All it meant was that the demand was one that went the other way, i.e. was a demand by the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 28 June 2022; Ref: scu.186084

Inland Revenue Commissioners v Hashmi and Another: ChD 4 Oct 2001

In 1989, the taxpayer transferred property by means of a trust deed in favour of his son in consideration of his ‘natural love and affection’ for him. Four years later the commissioners investigated his tax affairs, and concluded that there were substantial undisclosed business profits. He died in 1997 owing substantial sums, and the commissioners sought to set aside the 1989 deed as being made in order to put his assets beyond reach.
Held: The possible dual purpose of the transaction did not prevent the inference, supported by the facts, that the statutory requirement was satisfied, and the deed was set aside. The execution of a deed transferring his beneficial interest in business premises to his son in consideration of ‘natural love and affection’ was a transaction at an undervalue.

Judges:

Hart J

Citations:

Gazette 25-Oct-2001, Times 02-Nov-2001

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Cited by:

Appeal from – Inland Revenue v Hashmi and Another CA 3-May-2002
The question for the court was whether when there was more than one purpose of a transaction the proscribed purpose under the section had to be dominant or not.
Held: It was not necessary for the proscribed purpose to be the dominant purpose; . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Land

Updated: 28 June 2022; Ref: scu.166698

Blair v The North British and Mercantile Insurance Co and Another: HL 7 Aug 1890

In a process of sequestration the debt of the petitioning creditors was constituted by two Sheriff Court decrees to which they had obtained an assignation. The oath set out in general terms that the debt in question was due, and the decrees and assignation were produced to the Justice of Peace. Held ( aff. judgment of the First Division) that a petition by the bankrupt for the recall of the sequestration on the ground that the oath did not set forth in terms that the sum in the decrees had not been paid either to the assignees or to the cedent, fell to be refused.
Their Lordships were unanimously of opinion that measures should be taken to prevent cases for which there was no foundation being brought in forma pauperis on appeal to the House of Lords.

Judges:

Lord Chancellor Halsbury, and Lords Watson, Herschell, Macnaghten, and Morris

Citations:

[1890] UKHL 1034 – 1, 27 SLR 1034 – 1

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 28 June 2022; Ref: scu.636736

London Borough of Tower Hamlets v Naris: ChD 27 Mar 2019

Disputed petition in respect of liability orders made in the Magistrates Court. An order that N be made bankrupt is opposed on the ground that there has been a miscarriage of justice. The court should not be satisfied that the debts set out in the petition are payable.

Citations:

[2019] EWHC 886 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Rating

Updated: 28 June 2022; Ref: scu.636128

Regina v Secretary of State for Social Security, Ex parte Taylor and Chapman: ChD 5 Feb 1996

The applicants were in turn the recipient of a Social Fund loan and a claimant who had been overpaid benefit. Both were later declared bankrupt. The Secretary of State then began to recover the loan and overpayment by deduction from their current benefits. They argued that he was unable to do so because of section 285(3) of the 1986 Act: that the right of deduction was a ‘remedy against the property or person of the bankrupt in respect of that debt’.
Held: Their entitlement was only to the net amount of benefit after deduction of the loan or overpayment and not to the full amount.

Judges:

Keene J

Citations:

Times 05-Feb-1996, [1997] BPIR 505

Statutes:

Insolvency Act 1986 285(3)

Jurisdiction:

England and Wales

Citing:

Applied – Bradley-Hole v Cusen CA 1953
The creditor was a tenant of rent-controlled premises who had been charged too much rent by his landlord. The bankrupt landlord’s trustee argued that the claim in respect of overpaid rent had been converted into a right to prove the debt in the . .

Cited by:

Cited – Secretary of State for Work and Pensions v Payne and Another SC 14-Dec-2011
The appellant sought to recover overpayments of benefits and Social Fund Loans, after the respondent had had a Debt relief order.
Held: The Secretary of State’s appeal failed. The ‘net entitlement principle’ argued for did not exist. The . .
Lists of cited by and citing cases may be incomplete.

Benefits, Insolvency

Updated: 28 June 2022; Ref: scu.467179

Bydand Ltd (In Liquidation): ChD 13 Mar 1997

The applicant sought to have rescinded a winding up order made on 22 January 1997 in respect of a company called Bydand Ltd in respect of liability orders made for arrears of council tax.
Held: The claim failed. Liability orders are orders of the court like ordinary civil judgments. If a winding up petition is based on such orders the court will seldom look into them, or go behind them, in the absence of fraud, or in the absence of jurisdiction in the court that made the orders, or ‘some other truly compelling circumstance.’

Judges:

Lindsay J

Citations:

[1997] BCC 915

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bydand Ltd (In Liquidation); Todd v Chiltern District Council and Official Receiver CA 27-Jun-1997
. .
Appeal from – Bydand Limited v Mark Feldman and Co (a Firm) Buckinghamshire County Council CA 27-Jan-1998
. .
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, Rating

Updated: 28 June 2022; Ref: scu.342121

In re Ci4net.com Inc and another: ChD 20 May 2005

It was necessary to decide whether two companies, Ci4net.com Inc and DBP Holdings Limited, had centres of main interests in London.
Held: The court addressed the issue of timing: ‘There were differences between counsel as to the approach which the court should adopt to a company which . . . had its CoMI in England whilst it was active in the market place, but which has ceased to trade. Mr Clarke [counsel for the companies] would agree with Ms Stonefrost [counsel for the creditor bank] to the extent that the EC Regulation should be applied in a manner which will discountenance attempts by a company to ‘forum shop’. It is, both would accept, important that trade creditors should know in what jurisdiction they will be able to pursue the assets of the company if it leaves their debts unpaid. It would, Ms Stonefrost said in her oral submissions, ‘be contrary to the policy of the EC Regulation for a company to be able to remove itself from the jurisdiction by ceasing to trade’. This, Mr Clarke said, goes too far. The question of timing is, he said, of importance. Mr Clarke accepts that a more or less cynical removal of the seat of a company’s operations from the EU to a non-EU territory a few weeks or months before the business goes to the wall would not be regarded as working an alteration in the CoMI of the company. There is, however a great difference between that and a restructuring of the business which is carried out for sound commercial reasons long before the question of insolvency proceedings becomes live. In the latter situation the policy against forum shopping does not raise a bar to a change in the company’s CoMI being effected upon the company’s ceasing to trade in the EU.’ and ‘The differences between counsel is, I think, one of emphasis rather than of principle. . . . To the limited extent to which I think there is a material controversy here, I prefer Mr Clarke’s approach. In my judgment Ms Stonefrost comes too close to saying (although she did not in fact say it) that, once a company has a CoMI within the EU, it is stuck with that CoMI on ceasing to trade, notwithstanding the time at which, or the circumstances in which, that cessation occurs.’
‘The notion of the location of a business shifting as its director moves from one country to another does not sit easily with the policy which underlies the EC Regulation. A business must under the EC Regulation have a CoMI and, in my judgment, a CoMI must have some element of permanence.’ and ‘The CoMI of [Ci4net.com Inc] was until at least April 2001 in London, and what has occurred since is not sufficient (even if supported by the presumption in favour of the place of the registered office) to justify a finding that the CoMI is now elsewhere.’

Citations:

[2004] EWHC 1941 (Ch)

Jurisdiction:

England and Wales

Cited by:

Cited – Shierson v Vlieland-Boddy CA 27-Jul-2005
The debtor claimed that he could not be served with an insolvency petition, being resident in Spain.
Held: The court was to look to where was the centre of his main interests to determine whether to open insolvency proceedings. On that basis, . .
Lists of cited by and citing cases may be incomplete.

Insolvency, European

Updated: 28 June 2022; Ref: scu.249854

Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another: ChD 2005

Citations:

[2005] BPIR 842

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 28 June 2022; Ref: scu.242121

Papanicola v Humphrys and Others: ChD 14 Mar 2005

The bankrupt had continued to run his restaurant for a year, by having another company collect his receipts for him. The trustee had obtained a declaration that the sum was held in trust for the bankrupt’s estate. The director of the company who had collected the fund had not attended on the first hearing, and had had the declaration set aside. The trustee appealed.
Held: The appeal succeeded. It as inherent in the power to revisit a court order that it should only be done if there was a change of circumstances. The director had not given any sufficient explanation as to why he had not attended the first hearing, and therefore the original order was re-einstated.

Judges:

Laddie J

Citations:

Times 28-Apr-2005

Jurisdiction:

England and Wales

Citing:

Cited – In re a Debtor (No 32 SD 1991) ChD 1993
. .
Cited – In Re A Debtor (No 32 of 1993) ChD 1-Mar-1994
A voluntary arrangement can be offered where only one creditor may stay bankruptcy proceedings. Rejection of less than the full amount by a petitioning creditor was not necessarily unreasonable. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 27 June 2022; Ref: scu.226000

Freakley, Gleave, Squires, T&N Limited v Centre Reinsurance International Company, Muenchener Rueckversicherungs-Gesellschaft, European International Reinsurance Company Limited, Curzon Insurance Limited: ChD 26 Nov 2004

Judges:

The Hon Mr Justice Richards

Citations:

[2004] EWHC 2740 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others ChD 9-May-2003
T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their . .
See Also – Re Tand N Ltd and Others ChD 21-Oct-2004
. .
See Also – Alexander Forbes Trustee Services Limited and Another v Jackson and Others ChD 2-Nov-2004
. .

Cited by:

See Also – T and N Ltd and Others, Re the Insolvency Act 1986 (Communications) ChD 8-Dec-2004
. .
See Also – In re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
See Also – T and N Ltd and Others, In the Matter of the Insolvency Act 1986 ChD 21-Dec-2005
. .
See Also – T and N Ltd and others v In the Matter of the Insolvency Act 1986 (Conflict of Law) ChD 21-Dec-2005
. .
See Also – In the Matter of T and N Limited and others ChD 12-Apr-2006
. .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 27 June 2022; Ref: scu.220046

Mytravel Group Plc, Re Companies Act 1985: ChD 24 Nov 2004

The company sought approval of a proposed reconstruction under the section.
Held: Approval could not be given. To count as a reconstruction two principal qualities were required. The business carried on should be the same or similar, and those carrying on the business should be the same or similar. Here the proposal would result in the former shareholders owning only 4% of the new business.

Judges:

Mann J

Citations:

[2004] EWHC 2741 (Ch), Times 30-Nov-2004

Links:

Bailii

Statutes:

Companies Act 1985 425

Jurisdiction:

England and Wales

Citing:

Cited – In the Matter of Telewest Communications Plc and in the Matter of Telewest Finance (Jersey) Ltd ChD 22-Jun-2004
Richards J said: ‘In considering the primary position of the Opposing Bondholders, it is important to keep in mind the function of the court at this stage. This is an application by the companies for leave to convene meetings to consider the . .
Cited – Hooper v Western Counties and South Wales Telephone Co Ltd 1892
The court placed a restrictive meaning on the idea of a company reconstruction. The new company is to consist of the old shareholders. . .
Cited – Practice Statement (Companies Schemes of Arrangement) 2002
. .
Cited – Swithland Investments Ltd v IRC 1990
The court considered whether a scheme of re-arrangement of a company was a reconstruction within the meaning of the Stamp duty legislation. . .
Cited – Re South African Supply and Cold Storage Co 1904
The court had to construe the words ‘reconstruction or amalgamation’ in the memorandum of association of a company: ‘The only question I have to decide is whether, in the case of each of these two companies, there has or has not been a winding-up . .
Cited – Brooklands Selangor Holdings Limited v Inland Revenue Commissioners ChD 1970
The court had to consider whether the arrangments before it amounted to a reconstruction for stamp duty purposes: ‘I will deal first with the question whether those transactions amounted to a reconstruction. In ordinary speech the word . .
Cited – Baytrust Holdings Ltd v Inland Revenue Commissioners 1971
Whether a scheme of arrangement constituted a reconstruction for stamp duty purposes. . .
Cited – In re Courage Group’s Pension Schemes Ryan v Imperial Brewing and Leisure Ltd ChD 1987
It was possible to amend the provisions of a pension scheme provided the amendments did not conflict with the purposes of the scheme. How was a court to identify such purposes: ‘It is trite law that a power can be exercised only for the purpose for . .
Cited – Fallon v Fellows (Inspector of Taxes) ChD 2001
The court considered whether a scheme was for the purposes of reconstruction or amalgamation in a capital gains tax context. Citing South African Supply: ‘In the context I think it is clear that when the learned judge referred to the persons . .
Cited – Oswald Tillotson Limited v ORC 1933
‘When I come to consider the purpose of this section, and to see why there is to be immunity and exemption from transfer stamp duty, I find that it is because the old company is really represented or replaced by the new company, and the shareholders . .
Cited – Re Tea Corporation CA 1904
A scheme was proposed in a liquidation and a meeting of, inter alia, ordinary shareholders was proposed, who were to be given shares in the new company in place of their shares in the old, so to that extent they were affected by the scheme. The . .
Cited – In re British and Commonwealth plc (No 3) ChD 1992
Bonds were subordinated in a winding up, and the company was in administration in which the administrators were proposing a scheme of arrangement. The judge was invited to apply the Tea Corporation principles in order to arrive at a conclusion that . .
Cited – In re Ocean Steam Navigation Company Limited ChD 1939
A petition was presented for the re-organisation of the company in circumstances in which, though it was was wholly insolvent, proposed a transfer of its entire undertaking to a new company, the shares in the new company being allotted to the . .
Cited – In re Maxwell Communications plc ChD 1993
It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one’s own disadvantage, particularly by analogy with cases on set-off in . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 27 June 2022; Ref: scu.219692

Coulter v Chief Constable of Dorset Police: CA 8 Oct 2004

The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
Held: It had not been unfair not to set aside the statutory demand. Though the action was conducted in the name of the chief constable it was as nominee and for and on behalf of the police force. Appeal refused.

Judges:

Waller Chadwick Carnwath LJJ

Citations:

[2004] EWCA Civ 1259, Times 22-Oct-2004, [2005] 1 WLR 130, [2005] BPIR 62

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Coulter v Chief Constable of Dorset Police ChD 12-Dec-2003
The claimant had failed in an action for damages against the respondent, and had failed to pay the costs award. The respondent issued a statutory demand. He claimed that it was invalid because the chief constable had changed in the interim, and . .
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 by:

See Also – Coulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 27 June 2022; Ref: scu.219135

Greene King Plc v Stanley and others: CA 30 Nov 2001

The claimant challenged an order that the two defendant chargors were discharged from liability to the claimants under their individual voluntary arrangement and on the basis that it had been entered under undue influence.

Citations:

[2001] EWCA Civ 1966, [2002] BPIR 491

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Undue Influence

Updated: 27 June 2022; Ref: scu.218520

Atherton v Ogunlende and Another: CA 20 Nov 2001

It would be a waste of court time and the parties’ money to allow a debtor, who had already failed on his application to set aside a statutory demand, to advance the same arguments by way of challenge to the petition debt on the hearing of the petition: ‘However, in general, it seems to me right in principle and in the public interest that, if a party has raised an argument in a proper forum, where it has been considered in connection with a particular process, in this case a bankruptcy or a prospective bankruptcy, and from which forum he had a right of appeal if he wished to exercise it, if that argument is rejected and he does not appeal, it requires exceptional circumstances before he can raise the same argument at a later stage during the same process.’ and ‘It seems that the principle enshrined in the passage in the judgment of Vinelott J, [in Brillouet v Hachette Magazines Ltd [1996] BPIR 518] approved by Chadwick LJ, and indeed his own judgment in Turner v Royal Bank of Scotland [2000] BPIR 683, indicates that the principle should not be abrogated simply because the party has found a better way of putting the same point, or wants to put in more evidence to support the same point. If there were evidence from Mr Atherton as to specific facts which really make a difference, and which he was unable to put forward on 11 March 1999 through no fault of his own (eg because it was then unavailable or unknown to him at that hearing) different considerations might apply. However, to my mind there is nothing in the subsequent evidence which justifies my going against the normal rule as laid down in Turner.’

Judges:

Neuberger LJ

Citations:

[2001] EWCA Civ 1844

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Brillouet v Hachette Magazines Ltd 1996
A party should not be allowed to put an argument again which had been lost at an earlier stage merely because he felt he had found a better way of putting the argument. . .
Cited – Turner v Royal Bank of Scotland CA 2000
The court was asked whether a debtor could pursue at the hearing of the bankruptcy petition a challenge to the petition debt on grounds which had already failed on an earlier application to set aside the statutory demand. . .

Cited by:

Cited – Coulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 June 2022; Ref: scu.218493

Multicultural Media Centre for the Millennium Ltd v Millennium Commission: CA 19 Oct 2001

Where a court was faced with a situation where both parties wished to proceed, but one wanted to put in an affidavit which the other had not had chance to examine, it became impossible for that judge to proceed fairly. A winding up order made under such circumstances was set aside. The case was remitted to another judge of the Chancery Division.

Judges:

Lord Justice Judge, Lord Justice Chadwick and Lord Justice Jonathan Parker

Citations:

Times 16-Nov-2001, [2001] EWCA Civ 1687

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Re Multicultural Media Centre for the Millenium Ltd CA 22-Mar-2001
. .
See Also – Millennium Commission v Multicultural Media Centre for the Millennium CA 13-Jun-2002
. .

Cited by:

See Also – Re Multicultural Media Centre for the Millenium Ltd CA 22-Mar-2001
. .
See Also – Millennium Commission v Multicultural Media Centre for the Millennium CA 13-Jun-2002
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 27 June 2022; Ref: scu.218449

Thomas-Everard and Others v Society of Lloyd’s: ChD 18 Jul 2003

The claimant appealed refusal to set aside a statutory demand made by the respondent society. The proposed defence had been already been dismissed by the courts.
Held: Such a consideration was very relevant, but not necessarily determinative. The debtor was obliged to proceed quickly, and could not delay his application. He had to demonstrate a gennuine triable issue. And there was no reason why challenges at the stage of the petition should be subject to different tests of substantiality. The court of appeal had given leave to appeal. The earlier decision was not determinative, and the statutory demands could be set aside.

Judges:

Laddie J

Citations:

Times 28-Aug-2003

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.5(4)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Society of Lloyd’s v Laws and others ComC 24-Apr-2003
. .
Cited – Jaffray and others v Society of Lloyd’s CA 26-Jul-2002
There is no more scope for corporate dishonesty in deceit than in misfeasance, other than by the attribution to a corporate body of the dishonesty of an individual. It was alleged that there was unfairness through inequality of representation: ‘In . .
Cited – Society of Lloyd’s v Jaffray and others QBD 3-Aug-2000
Any party was free to put in evidence statements where the party who had prepared them had himself decided not to call the evidence. There was no power to call the person to give that evidence, but it could be admitted on the basis that it was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 27 June 2022; Ref: scu.186094

Exeter City AFC Ltd v Football Conference Ltd and Another: ChD 29 Jan 2004

The football club played in a league operated by the first defendant, which sought a stay of an application for relief from unfair prejudice, saying their was a binding obligation for the complaint to be referred to arbitration.
Held: ‘the court controlled by statute the creation and extinction of a company and also attended to it during its mid-life crises.’ The court refused to regard the right to petition for unfair prejudice under section 459 as capable of being the subject of an arbitration.

Judges:

Weeks QC, J

Citations:

Times 12-Feb-2004, Gazette 04-Mar-2004

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

Cited – A Best Floor Sanding Pty Ltd v Skyr Australian Pty Ltd 1999
(Australia) The right of a contributor to a company to take his application for a winding up of the company to court could not be ousted by agreement btween the parties. . .
Cited – In re Magi Capital Partners LLC 2003
The court stayed a petition under the section to allow for an arbitration. . .
Cited – In re Vocam Europe Ltd 1998
The applicant was entitled to stay an application for a winding up of the company where it had been agreed that such a dispute would be referred to arbitration. The claimant had argued that a stay should not be given because an arbitrator would not . .

Cited by:

Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Updated: 27 June 2022; Ref: scu.193476

Rodencroft Limited, W. G. Birch Developments Limited, H-M Birch Limited; Simon Allso v The Secretary for State for Trade and Industry: ChD 23 Apr 2004

The Secretary of state sought the winding up of the companies saying it was expedient in the public interest to do so. A shareholder opposed this saying that the companies were solvent.
Held: The shareholder had, in the absence of any position taken by the company, the standing to make the application, which was granted in respect of one company and refused for the other two. The rules did not envisage a shareholder appearing in such a case, but he should not be prevented from doing so in an appropriate case.

Judges:

The Hon Mr Justice Evans-Lombe

Citations:

[2004] EWHC 862 (Ch), Times 13-May-2004

Statutes:

Insolvency Act 1986 12A

Jurisdiction:

England and Wales

Citing:

Cited – Re Camburn Petroleum Products Ltd ChD 1979
The court heard a contributors’ petition. The directors were in deadlock with equal shareholdings. The petition was not making good progress, and a creditor’s petition was then issued. The shareholder sought a stay.
Held: There was a . .
Cited – Bows v Hope Life Insurance and Guarantee Co HL 1865
In the case of a creditor’s petition not opposed by other creditors: ‘I agree with what has been said, that it is not a discretionary matter with the court when a debt is established, and not satisfied, to say whether the company should be wound up . .
Cited – Xyllyx PLC (No1) ChD 1992
Two of the company’s contributories asked be added to the list for the purpose of obtaining a 7 day adjournment of the hearing of the petition so as to give them time to consider whether they wished to ask for substitution.
Held: An ordinary . .
Cited – Re Walter L Jacob Ltd CA 1989
Having authorised an enquiry under section 447, the Secretary of State presented a winding-up petition of the respondent, an authorised dealer in securities. The company had been obliged to cease trade by its regulatory body. The judge held that the . .
Cited – Re Rica Gold Washing Co 1879
A contributory, when petitioning for the winding up of a company, must plead in his petition and prove by evidence that, if a winding up order is made, there is a contingent surplus of assets in the winding up which will be available for . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 27 June 2022; Ref: scu.195973

In re Menastar Finance Ltd (in Liquidation); Menastar Ltd v Simon: ChD 4 Nov 2002

In the course of a winding up, the applicant creditor sought to prevent the liquidator admitting a proof of debt which he had previously refused.
Held: It was established law that the court could go behind the liquidator’s judgement to examine the circumstances behind the admission to proof of debts. However, here, the applicant itself was at risk of an action for misfeasance. The amount of its proof was not substantial, and it had itself been in part the cause of the debt being refused. The sole purpose of the action was not to prevent wrongful dilution of the assets, but rather to retain control of the liquidation, and so to prevent the action. Application refused.

Judges:

Etherton J

Citations:

Times 11-Nov-2002

Jurisdiction:

England and Wales

Insolvency

Updated: 27 June 2022; Ref: scu.178038

Warley Continental Services Ltd (in liquidation) v Johal: ChD 7 Oct 2002

The liquidator sought to revoke or suspend the voluntary arrangement on the grounds of a material irregularity, but the application was lodged well outside the statutory 28 day limit, and he first sought leave to apply out of time.
Held: The court had a discretion to extend the limit, and could take into account a wide range of factors, but here the delay had been long with regard to the tight timetable imposed by the Act, even though other considerations suggested a review, and the application was rejected.

Judges:

Norris QC

Citations:

Times 28-Oct-2002

Statutes:

Insolvency Act 1986 262(3) 376

Jurisdiction:

England and Wales

Citing:

Cited – Tager v Westpac Banking Corporation and Others ChD 24-Dec-1996
A court has the power to extend the time allowed for a challenge to a voluntary arrangement. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 June 2022; Ref: scu.177802

Practice Statement (Administration order: Reports): ChD 15 Apr 2002

The statement was issued as a gloss on the 1994 practice statement. A party wishing to restrict access to all or any part of an independent report prepared in support of an application for an administration order must be ready to support their application with proper reasons. Each application must be dealt with on its own facts, and different reasons may make applications valid. Nevertheless, the rules provided that such material should be public in the absence of good reason.

Citations:

Times 25-Apr-2002

Statutes:

Insolvency Rules 1986 (SI 1986 No 1925) 2.2 7.31(5)

Jurisdiction:

England and Wales

Citing:

Cited – Practice Note (Administration Order Applications: Independent Reports) ChD 25-Jan-1994
Guidance from Vice Chancellor on cost of obtaining independent reports. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 June 2022; Ref: scu.170175

OT Computers v First National Tricity Finance: ChD 2003

Judges:

Pumfrey J

Citations:

[2003] EWHC 1010 (Ch), 2003 2369 A3

Jurisdiction:

England and Wales

Cited by:

Appeal From – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Cited – 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: 27 June 2022; Ref: scu.416577

In Re Edennote Ltd; Tottenham Hotspur plc v Ryman: ChD 1 Nov 1994

The company Edennote had been wound up on insolvency. It had a possible claim for fees against Tottenham, owned by Mr Sugare. The shareholder, Terry Venables, took an assignment of that action. An application was made to set aside the assignment and to remove the liquidator.
Held: The application succeeded. The assignment of the action had been against the expressed wishes of the creditors, who said that the action was worth more. The assignment was set aside and the liquidator was removed. The application to set the assignment aside could be commenced under either section 167 or 168.
A liquidator had to act in the interests of the general body of creditors, and might be removed if the creditors lost confidence in his ability to realise assets effectively and to pursue claims diligently.

Judges:

Sir John Vinelott

Citations:

[1995] 2 BCLC 248

Statutes:

Insolvency Act 1986 167(3) 168(5)

Jurisdiction:

England and Wales

Citing:

Applied – In re Keypak Homecare Ltd ChD 1987
The court considered an application under section 108 to remove the liquidator, and reviewed the case law on the topic: ‘The section authorises the court to remove the liquidator ‘on cause shown’. That is not the same as saying ‘if the court shall . .

Cited by:

Appeal from – In Re Edennote Ltd; Tottenham Hotspur plc v Ryman CA 21-May-1996
The company was in liquidation. Terence Venables, who had owned the shares, had taken an assignment of a cause of action against the football club. The court had set aside that assignment, and removed the liquidator. Venables now appealed saying . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 27 June 2022; Ref: scu.346691

Re Le Winton: ChD 31 Jul 2007

Registrar Simmonds considered that: ‘in order to convert what is clearly an unliquidated sum to a liquidated sum there must be . . clear and unequivocal conduct or agreement on the part of the debtor to demonstrate acceptance of those bills of costs such as to forego the right of assessment and to convert them to a liquidated sum.’

Judges:

Registrar Simmonds

Citations:

Unreported, July 31 2007

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Truex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 June 2022; Ref: scu.317855

The Charit-Email Technology Partnership Llp v Vermillion International Investments Ltd: ChD 13 Feb 2009

Appeal of 94 individuals, who deny being contributories of a limited liability partnership (LLP) called Charit-Email Technology Partnership

Judges:

Sir Andrew Morritt Ch

Citations:

[2009] EWHC 388 (Ch), [2009] BPIR 762

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 27 June 2022; Ref: scu.317907

In the Matter of British American Racing (Holdings) Limited; In the Matter of the Insolvency Act 1986: ChD 16 Dec 2004

The company raced in the Formula 1 series. Its main sponsors had been British American Tobacco, but because of restrictions of tobacco advertising, the company lost substantial revenue and fell in to loss, and entered into an individual voluntary arrangement. It had just signed a new joint venture agreement with Honda, when BAT called in its loan. BAT sought an administration order. Mount Eagle a smaller shareholder refused to sell out and opposed the application, saying the administration was not sought in good faith.
Held: The debts were substantial, and the shares had no independent value. The proposal would allow for payment of the company’s debts. Administrators would have a duty to te court to act fairly, and the an order would not be unfair. The application was not an abuse.

Judges:

Lord Justice Evans-Lombe

Citations:

[2004] EWHC 2947 (Ch)

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Cited – Re a Company No 001573 of 1983 ChD 1983
The court was presented with a petition of a creditor to wind up a company. The company had leasehold premises which contained a provision for forfeiture of the lease in the event of such a petition. The petitioner had agreed with the company’s . .
Cited – Re Bugle Press Ltd CA 2-Jan-1961
Shareholders with over 90% of the issued shares sought to acquire the remaining shares, and create another company to do so. That company offered to purchase the shares at a valuation. The majority shareholders accepted but the minority shareholder . .
Cited – Re Bugle Press Ltd ChD 1961
Two shareholders held more than 90% of the issued shares of the company. To get rid of the holder of the remaining shares, they incorporated another company for the purpose of acquiring all the shares of the company. The acquiring company offered to . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 27 June 2022; Ref: scu.220954

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.

Judges:

Carnwath J

Citations:

[1997] BCC 666

Statutes:

County Courts Act 1984 41

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Cited – In Re A and C Supplies Limited ChD 17-Oct-1997
Applications were made for the removal of a liquidator from several appointments in corporate nd individual insolvencies. He had been a partner in a firm and that had ceased in a way which left it impossible to work with his former partners to . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 June 2022; Ref: scu.221559

Bednash v Hearsey: CA 15 May 2001

Excessie Directors pay recoverable on insolvency

The liquidator sought permission to appeal against rejection of its claim for repayment of sums by a director who, he said, had been paid excessive amounts. The claim had een rejected because at th time of payments, the company had not been insolvent.
Held: The court approved the statement of law at first instance: ‘While a company is not actually insolvent and is continuing to trade, directors deciding what to pay themselves must strike a fair balance, taking into account the value of their services to the company, the position on creditors, the company’s overall state and the availability of funds to make the payments. Reasonable latitude must be allowed before the court will say that payments to directors are so irresponsible as to have constituted a breach of their fiduciary duties; and it would take exceptional circumstances before they would be expected (if they ever were) to suspend their own remuneration altogether.’

Judges:

Potter LJ,Sir Martin Nourse

Citations:

[2001] EWCA Civ 787

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 27 June 2022; Ref: scu.218150

Lloyds Bank Plc v Ellicott: CA 8 Feb 2002

A voluntary arrangement has contractual effect.

Judges:

Chadwick LJ

Citations:

[2002] EWCA Civ 1333, [2003] BPIR 632

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 23 June 2022; Ref: scu.216808

Graysons Restaurants Ltd v Jones and Others: CA 17 Apr 2019

The court was asked whether a claim for equal pay which has not been determined when the employer becomes insolvent can constitute ‘arrears of pay’ payable by the Secretary of State under Part XII of the Employment Rights Act 1996.

Citations:

[2019] EWCA Civ 725

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination, Insolvency

Updated: 23 June 2022; Ref: scu.636082

Trident International Limited v Barlow: ChD 27 Feb 1998

Judges:

Eben Hamilton QC

Citations:

[1998] 2 BCLC 164

Statutes:

Insolvency Act 1986 11(3)(c)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Trident International Limited v Barlow; Hughes and Goodman (the Joint Administrators of Hamley Plc and Jeffrey (Rogers) Imports Limited CA 30-Jul-1999
A contractual possessory lien, coupled with a right to sell and use the proceeds to discharge the customer’s outstanding indebtedness was not a floating charge because the company did not purport to have any right to exercise any right to take . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 23 June 2022; Ref: scu.414894

Nicholls v Lan and Another: ChD 26 May 2006

The bankrupt had been discharged from his bankruptcy, but his share in the family home remained vested in the trustee who applied for the sale of the home. His wife applied to set aside an order for sale on the basis that it interfered with her right to family life.
Held: Previous decisions had not considered the effect of Article 8 on applications under s335A. The section allowed a judge to do what he considered just and reasonable in all the circumstances. He had to balance the needs of the creditors and of the applicant. Those interests were different in character and quality. No sufficient error had been shown in the way the district judge had exercised his discretion to allow the setting aside of his order.

Judges:

Paul Morgan QC

Citations:

Times 04-Aug-2006

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14, Insolvency Act 1986 335A(3)

Jurisdiction:

England and Wales

Citing:

Cited – In re Lowrie 1981
When a judgment creditor applies for an order for sale of a property subject to a Charging Order, the competing equities of the parties will be carefully weighed. . .
Cited – Re Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks CA 1991
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Human Rights

Updated: 23 June 2022; Ref: scu.244694

Feetum and Other v Levy and Others: ChD 5 Jan 2005

The applicants sought a declaration that the appointment of the defendants as administrative receivers of the company, a limited liability company, was precluded by the 1986 Act.
Held: The administrator had been appointed under a debenture, but the section precluded such appointments by proprietors of a floating charge unless one of the exceptions specified arose, particularly where the project company was a financed project and included step-over rights. There was no reason to limit the scope of the term ‘project’ within the Act to construction projects. The scheme was a project within the definition, but it was not ‘financed’ since at the time of the incurring of the debt, it was not expected that the borrowings would exceed andpound;50 million. Tthough the receivers were appointed by the Act, they operated as agents of the borrowers. It was not a financed project, and the exceptions allowing the appointment did not apply.

Judges:

Lewison J

Citations:

Times 24-Feb-2005

Statutes:

Insolvency Act 1986 72A

Jurisdiction:

England and Wales

Cited by:

Appeal from – Feetum v Levy CA 2006
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 23 June 2022; Ref: scu.223013

Herbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert BerrySP, Regina (on The Application of) v The Lord Chancellor: HL 1977

The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be permitted to do so, applies also to a distress levied by the Crown under a statutory duty.
Lord Russell said: ‘Finally section 325 cannot avail the liquidator: . . It was suggested that distraint was a form of execution; but Parliament has quite clearly distinguished distress and execution: see section 228 of the 1948 Act’ and ‘So far as concerns section 325 I cannot conceive a more deliberate restriction to two only of methods of proceeding – I use the word in a non-technical sense – against the property of a company.’ S61 TMA 1970 and s319 CA 1948 could quite easily sit together. Section 61 imposes on the collector a statutory duty to distrain. Under section 319(7), a distraint (even if completed by sale) within 3 months of the winding-up order charges the distrained goods or their proceeds of sale with the preferential debts. Subject to that, and the discretion of the court to restrain completion of an uncompleted distress, the distrainor keeps the good distrained. Accordingly, in a voluntary winding-up, the distraint, even if incomplete, was permitted to disturb the pari passu distribution of preferential debts. The distrained assets are not assets of the company available for distribution within sections 302 or 319(5). There was a need for a lis to support an application for an asset freezing injunction. ‘The primary sense of action as a term of legal act is the invocation of the jurisdiction of the court by writ.’

Judges:

Lord Simon of Glaisdale, Lord Russell

Citations:

[1977] 1 WLR 1437, [1977] 1 All ER 161, [1977] UKHL TC – 52 – 113, [1980] AC 562, 53 TC 241, [1979] STC 735, [1979] TR 335, 121 SJ 829

Links:

Bailii

Statutes:

Companies Act 1948 325, Taxes Management Act 1970 61

Jurisdiction:

England and Wales

Citing:

At ChD – Herbert Berry Associates Ltd v Inland Revenue Commissioners ChD 1976
The collector of taxes distrained on the goods of the company under section 61 TMA 1970 for unpaid taxes and the company entered into a walking possession agreement. Before the collector had sold the goods, and completed the distress, the company . .
At CA – Herbert Berry Associates Ltd v Inland Revenue Commissioners CA 2-Jan-1976
The word ‘proceedings’ meant the ‘invocation of the jurisdiction of a court by process other than writ’. . .

Cited by:

Cited – Fourie v Le Roux and Others ChD 30-Sep-2004
Interim asset freezing injunctions had been obtained on the application of a liquidator in South Africa. The defendant applied for their discharge.
Held: They should be discharged. No foreign proceedings had been specified for which they were . .
Cited – Brenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency, Landlord and Tenant, Taxes Management

Updated: 21 June 2022; Ref: scu.216341

Customs and Excise v Anglo Overseas Ltd: ChD 5 Oct 2004

Judges:

The Honourable Mr Justice Lewison

Citations:

[2004] EWHC 2198 (Ch), [2005] BPIR 137

Links:

Bailii

Statutes:

Excise Duty Points (Duty Suspended Movements of Excise Goods) Regulations 2001

Jurisdiction:

England and Wales

Cited by:

Cited – Re Autotech Design Ltd, HMRC v Autotech Design Ltd ChD 2006
Michael Briggs QC summarised the approach to be adopted by the court at the hearing of for the appointment of an interim liquidator pending the hearing of an insolvency petition brought by the Revenue: ‘Although the formulations of the approach to . .
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.

Customs and Excise, Company, Insolvency

Updated: 21 June 2022; Ref: scu.215859

Gourdain v Nadler: ECJ 22 Feb 1979

Brussels Convention. Bankruptcy and proceedings relating to the winding-up of insolvent companies or other legal persons. Action for making good the deficiency. – ‘it is necessary, if decisions relating to bankruptcy and winding-up are to be excluded from the scope of the Convention, that they must derive directly from the bankruptcy or winding-up’
Europa 1. The concepts used in article 1 of the Convention which serve to indicate its scope must be regarded as independent concepts which must be interpreted by reference, first, to the objectives and scheme of the convention and, secondly, to the general principles which stem from the corpus of the national legal systems. 2. Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings are proceedings founded, according to the various laws of the contracting parties relating to debtors who have declared themselves unable to meet their liabilities, insolvency or the collapse of the debtor’s creditworthiness, which involve the intervention of the courts culminating in the compulsory ‘liquidation des biens’ in the interest of the general body of creditors of the person, firm or company or at least in supervision by the courts. If decisions relating to bankruptcy and winding-up are to be excluded from the scope of the convention they must derive directly from bankruptcy or winding-up and be closely connected with proceedings for the ‘liquidation des biens’ or the ‘reglement judiciaire’.

Citations:

R-133/78, [1979] EUECJ R-133/78

Links:

Bailii

Cited by:

Applied – Ferdinand M.J.J. Duijnstee v Lodewijk Goderbauer ECJ 15-Nov-1983
A liquidator sought to recover a patent from an employee of the company, a claim held not to be excluded from the Convention.
Europa 1. The Convention of 27 September 1968, which seeks to determine the . .
Cited – QRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
Lists of cited by and citing cases may be incomplete.

European, Insolvency

Updated: 21 June 2022; Ref: scu.214794

In re London and Globe Finance Corporation Ltd: ChD 1903

A company which had gone from voluntary winding up, first to winding up under supervision and then to compulsory winding up, with the official receiver as liquidator. The company’s former managing director was suspected of fraud, but the law officers declined to prosecute. Some of the shareholders wished to prosecute him, mainly at the expense of the company’s assets (although they offered to pay into court at least andpound;1,250 of their own money) while others opposed the prosecution as a waste of money.
Held: The court authorised the liquidator, the official receiver, to do so at the expense of the company. Buckley J said: ‘the general scheme of the Acts with reference to the liquidation of a company no doubt is that the assets are to be realised to the best advantage for the benefit of those who are entitled to share in their distribution. But indications are not wanting that the assets may under the Acts be applied for some purposes other than these. Section 167 of the [1862 Act] is, having regard to the reasons which I have just given, one example of this, and in the [1890 Act] the same intent may be traced in sections 7 and 8 of that Act. These are sections which require the preparation of a statement of the company’s affairs at the expense of the assets leading to a preliminary report, which is to show whether further inquiry is desirable as to matters relating to the promotion and the like, and, if necessary, to a public examination of parties incriminated, with the purpose, of course, of enforcing commercial morality. It is, therefore, in my judgement plain that the principle upon which I am to apply, or refuse to apply, section 167 is not measured or limited or even concerned with pecuniary benefit to be obtained for the shareholders or creditors.’
and
‘ To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind ; to defraud is by deceit to induce a course of action.’

Judges:

Buckley J

Citations:

[1903] 1 Ch 728

Statutes:

Companies Act 1862 167

Jurisdiction:

England and Wales

Cited by:

Cited – Official Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
Cited – Director of Public Prosecutions v Ray HL 25-Jul-1973
The defendant ordered a meal at a restaurant believing his companion would lend him the money to pay. He later decided to seek to avoid payment and took a opportunity to escape.
Held: The appeal was allowed and the conviction restored. The . .
Questioned – Welham v Director of Public Prosecutions HL 1961
The House considered what was required to establish an ‘intent to defraud’.
Held: Lord Radcliffe said: ‘Now, I think that there are one or two things that can be said with confidence about the meaning of this word ‘ defraud ‘. It requires a . .
Mentioned – Scott v Metropolitan Police Commissioner; Regina v Scott HL 20-Nov-1974
The defendant had been accused of conspiracy to produce pirate copies of films obtained by purchasing copies from cinema owners without the knowledge or consent of the copyright owners.
Held: To establish a conspiracy to defraud, it was not . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Crime

Updated: 21 June 2022; Ref: scu.186357

GlaxoSmithKline Export Ltd v UK (Aid) Ltd: ChD 15 May 2003

The ordinary principle that costs followed the event in contested winding up proceedings where the petition was unsuccessful was subject to exceptions. Here, the company had launched the winding up proceedings in full knowledge of the facts which would be asserted by the company in its defence. It had adopted a high risk strategy. Applying Fernforest, no exceptional circumstances existed in this case.

Judges:

Blackburne

Citations:

Times 05-Jun-2003, Gazette 10-Jul-2003

Jurisdiction:

England and Wales

Citing:

Cited – In re Fernforest Ltd 1990
. .
Lists of cited by and citing cases may be incomplete.

Costs, Insolvency

Updated: 21 June 2022; Ref: scu.183356

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 that the bankrupt had failed in his obligation to co-operate with the receiver. The failure of the receiver yet to comply with the rules did not prevent the court making an order ex parte.

Judges:

The Hon Mr Justice Evans-Lombe

Citations:

Times 08-Jul-2003, Gazette 04-Sep-2003, [2003] EWHC 1398 (Ch)

Statutes:

Insolvency Act 1986 279(3)

Jurisdiction:

England and Wales

Citing:

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 . .
Cited – 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. . .
Cited – In re First Express Ltd ChD 1991
A liquidator applied to discharge an order that had been made against him ex parte under section 234 requiring him to hand over books and records of the company in his possession to administrative receivers.
Held: Hoffman J said: ‘It was wrong . .

Cited by:

Appeal from – Bagnall QC v Official Receiver CA 1-Dec-2003
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 21 June 2022; Ref: scu.183702