Category: Insolvency

Maria Albertina Gomes Viana Novo v Fundo De Garantia Salarial Ip: ECJ 28 Nov 2013

ECJ Request for a preliminary ruling – Directive 80/987/EEC – Directive 2002/74/EC – Protection of employees in the event of employer’s insolvency – Guarantee institutions – Limitation on the payment obligation of the guarantee institution – Wage claims falling due more than six months before the commencement of legal proceedings seeking a declaration of the employer’s insolvency

Citations:

C-309/12, [2013] EUECJ C-309/12

Links:

Bailii

Statutes:

Directive 80/987/EEC, Directive 2002/74/EC

Jurisdiction:

European

Employment, Insolvency

Updated: 30 November 2022; Ref: scu.518759

Atrium Traing Services Ltd; Smailes and Another v McNally and Others: ChD 27 Sep 2013

Liquidators of the company brought proceedings alleging fraudulent trading and trading whilst insolvent by its former directors. An application was made for an in-time application for an extension of time for disclosure.
Held: The Court should scrutinise an application for extension more rigorously than before the Jackson reforms and must firmly discourage any easy assumption that an extension would be granted simply on the ground that it would not involve prejudice to the other side. Even so the application succeeded.
Henderson J said: ‘On the other hand I think it is important not to go to the other extreme, and not to encourage unreasonable opposition to extensions which are applied for in time and which involve no significant fresh prejudice to the other parties. In cases of that nature, considerations of cost and proportionality are highly relevant, and the wider interests of justice are likely to be better served by a sensible agreement, or a short unopposed hearing, than by the adoption of entrenched positions and the expenditure of much money and court time in preparing for and dealing with an application that could have been avoided.
I would also observe that, although all court orders mean what they say, and must be complied with even if made by consent, there are some orders relating to the completion of specified stages in preparation for trial (such as disclosure, the exchange of witness statements or a timetable for expert evidence) where there may still be so many imponderables when the order is made that the date for compliance cannot sensibly be regarded as written in stone. Everything will always depend on the circumstances of the particular case, and the stage in the proceedings when the order is made, but in many such cases it should be understood that there may be a need for reasonable extensions of time or other adjustments as the matter develops. It would, I think, be unfortunate if the new and salutary emphasis on compliance with orders were to lead to a situation where, in cases of the general type I have described, a reasonable request for an extension were to be rejected in the hope that the court might be persuaded to refuse any extension at all.’

Judges:

Henderson J

Citations:

[2013] EWHC 2882 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 213 214

Jurisdiction:

England and Wales

Cited by:

Cited – Kaneria v Kaneria and Others ChD 15-Apr-2014
The parties were embroiled in a company dispute with allegations of conduct prejudicial to minority shareholders. An application was now made for sanctions for a failure to comply with court directions.
Held: Unless and until a higher Court . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 30 November 2022; Ref: scu.516285

Schmitt v Deichmann and Others: ChD 23 Jan 2012

The court heard appeal from an Order granting the applicant, the German administrator of Phoenix Kapitaldienst GmbH, recognition under the common law and authority to exercise the powers afforded to licensed insolvency practitioners under the Insolvency Act 1986. The Recognition Order was made on a without notice application.

Judges:

Proudman J

Citations:

[2012] EWHC 62 (Ch), [2012] ILPr 18, [2012] 3 WLR 681, [2013] Ch 61, [2012] WLR(D) 8, [2012] BCC 561, [2012] 2 All ER 1217, [2012] BPIR 392

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Insolvency

Updated: 30 November 2022; Ref: scu.450457

Windhorst v Levy: QBD 6 May 2021

Questions as to the court’s approach to the registration in this jurisdiction of a judgment of a German court under Council Regulation (EC) 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. In particular, the court is asked to consider whether that registration should be set aside when the judgment debt in question was subsequently included within a binding insolvency plan, which is to be recognized in this jurisdiction pursuant to Council Regulation (EC) 1346/2000 on Insolvency Proceedings.

Judges:

Mrs Justice Eady

Citations:

[2021] EWHC 1168 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, European, Insolvency

Updated: 30 November 2022; Ref: scu.662431

In Re Continental Assurance Company of London Plc (In Liquidation) (2): ChD 14 Jan 1999

The rules are intended to provide a comprehensive and unitary scheme of management of company liquidations, and in voluntary liquidation, the date of the resolution commencing the dissolution is to be used as the date of the winding up order.

Citations:

Gazette 10-Feb-1999, Times 14-Jan-1999

Statutes:

Insurance Companies (Winding Up) Rules 1985 95 L2

Jurisdiction:

England and Wales

Insurance, Insolvency, Company

Updated: 30 November 2022; Ref: scu.81817

In Re Devon and Somerset Farmers Ltd: ChD 25 May 1993

An Industrial and Provident Societies Act society is unregistered and is therefore not a company for the purposes of s40. Had that been intended express statutory provision would have been made.

Judges:

Hague QC J

Citations:

Times 25-May-1993, Gazette 01-Sep-1993, [1993] BCC 410

Statutes:

Insolvency Act 1986 40 251, Industrial and Provident Societies Act 1965, Companies Act 1985 735

Jurisdiction:

England and Wales

Citing:

Distinguished – In Re International Bulk Commodities Ltd ChD 26-Aug-1992
Company receivers in insolvency can include unregistered companies. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 30 November 2022; Ref: scu.81846

In Re Thirty-Eight Building Ltd: ChD 14 Jan 1999

For identifying whether a declaration of trust in favour of an employees’ pension scheme was preferential, the test was by reference to the trustees collectively. This was so under the section despite the close identity of the trustees with the directors.

Citations:

Times 14-Jan-1999

Statutes:

Insolvency Act 1986 239 435(5)(b)

Jurisdiction:

England and Wales

Insolvency

Updated: 30 November 2022; Ref: scu.82248

JSC Bank of Moscow v Kekhman and Others: ChD 20 Feb 2015

Appeal by JSC Bank of Moscow against the order giving effect to a judgment annulling a bankruptcy order.

Judges:

Morgan J

Citations:

[2015] EWHC 396 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – JSC Bank of Moscow v Kekhman and Others ComC 29-Oct-2015
Two related applications were before the court: (i) the claimant’s application dated 27 March 2015 to amend the Particulars of Claim and (ii) the first defendant’s application dated 13 July 2015 to strike out the Particulars of Claim, alternatively . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 November 2022; Ref: scu.543172

Mulkerrins v Pricewaterhouse Coopers: HL 31 Jul 2003

The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, and brazenly sought to avoid laibility by denying the claimant’s standing to sue them.
Held: The claim by the bankrupt was of a special kind, it related to the very bankruptcy itself, and so could not vest in the trustee. Right or wrong this was in any event res judicata between these parties. As to the respondents, their right to be heard on this issue was severely limited.
Lord Millett said that a bankrupt’s creditors are privies of the trustee in bankruptcy and generally bound by res judicata estoppels binding a trustee.

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Millett, Lord Lord Scott of Foscote, Lord Walker of Gestingthorpe

Citations:

[2003] 4 All ER 1, [2003] All ER (D) 539, [2004] PNLR 5, [2003] UKHL 41, Gazette 02-Oct-2003, [2003] 1 WLR 1937, [2003] BPIR 1357

Links:

Bailii, House of Lords

Jurisdiction:

England and Wales

Citing:

Appeal from – Mulkerrins v Pricewaterhousecoopers (A Firm) CA 12-Jan-2001
A trustee in bankruptcy had had vested in him the legal title to an action for damages for the loss to personal reputation and status of the bankrupt.
Held: A declaration that he had no interest in a claim for damages against a former . .
Cited – Ord v Upton CA 7-Jan-2000
A bankrupt labourer (aged 30) after the bankruptcy order issued a writ against a doctor who had treated him for back pain before the bankruptcy order, claiming damages for negligence, including damages for pain and suffering as well as damages for . .
Cited – Crown Estates Commissioners v Dorset County Council 1990
Res judicata (more properly estoppel per rem judicatam) is a form of estoppel which gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the . .
Cited – Beckham v Drake HL 11-Jul-1849
Non-property assets do not pass on bankruptcy
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this . .
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
Cited – Grady v HM Prison Service CA 11-Apr-2003
The applicant appealed striking out of her employment claims against the respondent. She had been made bankrupt after lodging her appeal to the EAT, and the EAT had held that she lacked standing to pursue her claim.
Held: Employment claims are . .
Cited – Stein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
Cited – In re Moritz CA 1960
Trustees had denied the defendants a sight of the exhibits to affidavits. Their’ counsel argued for a settled practice that where an application is made by trustees for directions of the Beddoe kind, then the proposed defendant beneficiaries should . .
Cited – In re Eaton 1964
. .
Cited – Smith v Croft (No 2) 1987
A registered shareholder who is absolute beneficial owner can vote as he pleases, subject only to rather imprecise constraints imposed by company law.
It is essential to the exception to the rule in Foss v Harbottle that the alleged wrongdoing . .

Cited by:

Cited – Khan v Trident Safeguards Ltd and others CA 19-May-2004
The claimant had ben made bankrupt. The defendant argued that his claim vested in the trustee.
Held: A discrimination claim was hybrid in nature rather than purely personal, and so it vested in the trustee. However the real issue was the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence

Updated: 26 November 2022; Ref: scu.185222

In Re Land and Property Trust Co Plc (No 2): CA 16 Feb 1993

The judge was wrong to refuse an adjournment when he had insufficient evidence before him properly to make his decision, and when a costs order was sought against the company directors personally in respect of an application for the winding up of a company. The directors had not been party to the early part of the proceedings and when told of the application for costs requested the opportunity to adjourn so that they could prepare a case.

Citations:

Times 16-Feb-1993

Jurisdiction:

England and Wales

Litigation Practice, Insolvency, Company

Updated: 26 November 2022; Ref: scu.81996

Cleghorn v Medwin Investments Ltd and Another: SCS 1 Jul 2016

‘These reclaiming motions arise out of the grant by a discharged bankrupt to the reclaimers of a number of dispositions and standard securities of property forming part of his sequestrated estate. ‘

Citations:

[2016] ScotCS CSIH – 49, 2016 GWD 22-405, 2016 SLT 923, 2016 SC 824

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 26 November 2022; Ref: scu.566803

Chalk v Kahn: 2000

Citations:

[2000] 2 BCLC 361

Jurisdiction:

England and Wales

Citing:

Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .

Cited by:

Doubted – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 26 November 2022; Ref: scu.191964

Re Permanent Houses (Holdings) Ltd: 1988

Citations:

[1988] BCLC 563

Jurisdiction:

England and Wales

Citing:

Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .

Cited by:

Doubted – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 26 November 2022; Ref: scu.191960

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 be pursued. Whilst the dismissal of a petition based on a disputed debt is not a matter of discretion, the like treatment of a petition based on a cross-claim can only be a matter of discretion. The cross-claim must, however, be shown to be ‘genuine and serious or, if you prefer, one of substance.

Judges:

Nourse, Ward, Mantell LJJ

Citations:

Times 12-Oct-1998, [1999] 1 WLR 147, [1998] EWCA Civ 1364, [1999] 1 BCLC 62, [1999] 1 All ER 374, [1999] 1 Lloyd’s Rep 211, [1998] BCC 988

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Popely v Popely ChD 25-Jul-2003
The claimant appealed refusal to set aside a statutory demand served by the defendant. The parties had become embroiled in criminal proceedings and the defendant sought recovery of assets from the claimant. In those proceedings a costs order had . .
Applied by analogy – Popeley v Popeley CA 30-Apr-2004
The creditor appealed an order setting aside a statutory demand.
Held: The demand had been issued to enforce a costs order when in related matters an action was pending against the creditor and where the debt upon which the demand was based . .
Applied – 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 . .
Mentioned – 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 . .
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 . .
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 25 November 2022; Ref: scu.81740

Alexander Speirs, Andrew Blackburn, and Andrew Syme, James Dunlop’S Trustees v Thomas and Wm Dunlop and Co, Trustees for The Creditors of John Carlyle and Co: HL 9 Mar 1777

Ranking – Society – Company and Individual Estate – Principles of Ranking.- (1) Held that a company are entitled to rank on an individual partner’s separate estate, pari passu with the creditors of that separate estate, for the whole amount of debts owing by the company after deducting any dividends that may have been paid to the company creditors. But, (2) Held in the House of Lords, that where, after a dividend on an estate was declared, and most of the creditors paid, a new claim was lodged for the first time on the estate, that such claim will not be allowed to disturb or affect the dividend paid before any notice was received of such claim.

Citations:

[1777] UKHL 2 – Paton – 437, (1777) 2 Paton 437

Links:

Bailii

Jurisdiction:

Scotland

Company, Insolvency

Updated: 25 November 2022; Ref: scu.562001

Fisher v CHT Ltd (No 2): 1966

Where more than one defendant is liable in damages, the court will make allowance for the insolvency of one when ordering a contribution from the others.

Judges:

Lord Denning MR

Citations:

[1966] 2 QB 475

Jurisdiction:

England and Wales

Cited by:

Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Damages, Insolvency

Updated: 25 November 2022; Ref: scu.193865

Re A E Realisations Ltd: 1988

Vinelott J said: ‘decisions on the Act of 1883 and on the Act of 1914 are . . of direct authority on the construction’ of the equivalent provisions for disclaimer by the liquidators of companies.

Judges:

Vinelott J

Citations:

[1988] 1 WLR 200

Statutes:

Bankruptcy Act 1883

Jurisdiction:

England and Wales

Cited by:

Cited – Park Air Services Plc; Christopher Moran Holdings Limited v Bairstow and Ruddock CA 1-May-1997
If a lease is determined or treated as determined in a winding up or in a bankruptcy, the landlord is entitled to prove in principle for all the rent and other payments which he would have been entitled to recover from the tenant for the residue of . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 25 November 2022; Ref: scu.197016

RMR Housing Society Ltd v Combs: 1951

The court considered it unnecessary to distinguish between terms and conditions of a tenancy forfeiting the tenancy on the insolvency of the tenant as to the result or effect for their breach.

Judges:

Evershed MR

Citations:

[1951] 1 KB 486

Jurisdiction:

England and Wales

Cited by:

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

Landlord and Tenant, Insolvency

Updated: 25 November 2022; Ref: scu.196909

Re Panther Lead Company: 1896

There was no surrender of a lease to the landlord and the tenant’s liquidator did not have the power to disclaim the lease. In the voluntary winding up of an insolvent company the landlord sought to prove for the liabilities of the company under the lease down to the end of the term. The lease was an onerous one.
Held: The court accepted that the terms of the lease were beneficial to the landlord and, if the lease were put an end to without due compensation to the landlord, he would suffer damage. The landlord was willing for the lease to be determined on terms of being allowed to prove for the loss thereby sustained. The judge gave liberty to the liquidator to carry out that arrangement, which would enable the landlord to prove ‘at once for his loss on the footing of the lease being determined or treated as determined’. The proof was allowed and the question of the amount was to be determined in Chambers. The landlord would be able to prove for his loss and the liquidator would be able to complete the winding up.

Judges:

Romer J

Citations:

[1896] 1 Ch 978

Jurisdiction:

England and Wales

Cited by:

Cited – Park Air Services Plc; Christopher Moran Holdings Limited v Bairstow and Ruddock CA 1-May-1997
If a lease is determined or treated as determined in a winding up or in a bankruptcy, the landlord is entitled to prove in principle for all the rent and other payments which he would have been entitled to recover from the tenant for the residue of . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 25 November 2022; Ref: scu.197018

In re Drew (A Bankrupt): 1929

(Ireland) A tenant subject to a re-entry clause in his tenancy agreement in the case of his being made bankrupt, and who had gone bankrupt had broken an obligation of his tenancy. He was not protected from an order for possession. ‘The tenant here has broken one of the conditions of his tenancy by allowing himself to be adjudicated a bankrupt, and therefore he is no longer entitled to possession, even as a statutory tenant.’

Judges:

Johnston J

Citations:

[1929] IR 504

Jurisdiction:

England and Wales

Cited by:

Cited – Cadogan Estates Limited v McMahon HL 26-Oct-2000
When a tenancy was terminated and was followed by a statutory tenancy, a term in the contractual tenancy that the tenancy should be forfeit on the tenant’s bankruptcy was continued in and inherited by the statutory tenancy. Though perhaps in . .
Cited – Paterson v Aggio CA 1987
The Court considered whether a tenancy was a ‘protected shorthold tenancy’ within the meaning of section 52 of the Housing Act 1980 and therefore excluded from the protection of the Rent Act 1977.
Held: A power to forfeit within the minimum . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 25 November 2022; Ref: scu.196908

Giles v Rhind: CA 28 Feb 2008

Citations:

[2008] EWCA Civ 118, [2008] BPIR 342, [2009] Ch 191, [2008] 2 BCLC 1, [2008] Bus LR 1103, [2008] 3 WLR 1233, [2008] 3 All ER 697

Links:

Bailii

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Citing:

See Also – Giles v Rhind CA 17-Oct-2002
An action by a company under a shareholder’s agreement was compromised. The other shareholder now sought to commence an action against the party in breach for his personal losses. The defendant argued that the company’s compromise was binding also . .
Appeal from – Giles v Rhind and Another ChD 28-Mar-2007
Application for permission to amend the particulars of claim in proceedings brought to set aside a transaction under section 423 of the Insolvency Act 1986 or to declare it a sham. . .

Cited by:

Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 24 November 2022; Ref: scu.266007

Re Stella Metals Limited and Others (In liquidation): 1997

Application was made for the replacement of a number of insolvency practitioners by the Insolvency Practitioners Association Ltd.
Held: The association might as a recognised body, have locus standi to apply to the court, but it was not a matter for hard and fast rules. In this case it did not: ‘It would be most unfortunate in these cases where an insolvency practitioner becomes disqualified from acting either technically because he is no longer licensed or physically because he falls sick or conceivably because some business arrangement he enters into supersedes the arrangement he originally operated under or it may be other circumstances but in any of those conditions there should not be available which can do broaddly what it may well be the creditors could, at considerable expense to them, achieve in penny paskets.
For those reasons it does not seem proper for the Court, on this occasion, notwithstanding the fact that Mr Alpress, of course, is no longer a member of the IPA and notwithstanding the fact that in respect of some of the appointments he was jointly appointed with Mr Seabridge who is not regulated by the IPA, but has also ceased to be a licensed insolvency practitioner, to make the appointment at the motion of the IPA.’

Judges:

Knox J

Citations:

[1997] BCC 626

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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 24 November 2022; Ref: scu.221561

Jones v Mossop: 1844

Mr Reed held a bond for pounds 500 given by Mr Jones, who had also guaranteed some loans to Mr Reed by third parties. Mr Reed died insolvent and Mr Jones was called to pay pounds 377 to the lenders under the guarantees. When Mr Reed’s assignee Mr Mossop sued Mr Jones on the bond, he brought proceedings in equity claiming to be entitled to set off the pounds 377 he had paid.
Held: Because Mr Reed had never actually been made bankrupt, the insolvency rules did not apply and the court C gave relief under general equitable principles, saying ‘if Richard Reed had been bankrupt, I should have had no difficulty in deciding this case.’

Judges:

Sir James Wigram V-C

Citations:

(1844) 3 Hare 568

Jurisdiction:

England and Wales

Cited by:

Cited – In re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 24 November 2022; Ref: scu.196876

In re Moseley-Green Coal and Coke Co Ltd, Ex parte Barrett: 1865

Mr Barrett owed the company money on his partly-paid shares for which calls were made after it went into insolvent liquidation. He had also guaranteed the company’s liability for the purchase price of a coal mine, for which the vendor held security in the form of a mortgage and the company’s promissory note. After the winding up Mr Barrett’s sister paid off the vendor and took over the mortgage and promissory note. Mr Barrett then entered into an arrangement which was treated as a payment of the company’s debt and he took over the promissory note.
Held: He was entitled to set off the debt on the promissory note against his liability to pay calls on his shares.

Judges:

Lord Westbury LC

Citations:

(1865) 12 LT (NS) 193

Jurisdiction:

England and Wales

Cited by:

Cited – In re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
Distinguishd – In re A Debtor (No 66 of 1955), Ex parte The Debtor v Trustee of Waite (A Bankrupt) CA 2-Jan-1956
Waite owed the debtor andpound;101 for goods sold and delivered. He was bankrupted, having previously guaranteed the debtor’s overdraft and deposited the deeds of his property as security. Waite’s trustee paid the bank andpound;133 out of the . .
Cited – Secretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 24 November 2022; Ref: scu.196877

In re Fernforest Ltd: 1990

Citations:

[1990] BCLC 693

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 24 November 2022; Ref: scu.183357

Pick v Chief Land Registrar: ChD 21 Jan 2011

The Court was asked: ‘Whether, apart from and without prejudice to paragraph 14 of the defence, the cancellation of the restriction in favour of the claimant on 13th August 2008 and the restriction [sic]’ (by which it is agreed was meant ‘registration’) ‘on that date of Ms Awokiyesi in place of the bankrupt was a mistake for the purpose of Schedule 8 to the Land Registration Act 2002.’

Citations:

[2011] EWHC 206 (Ch), [2012] Ch 564, [2011] BPIR 1090, [2012] 39 EG 125, [2012] 3 WLR 3

Links:

Bailii

Jurisdiction:

England and Wales

Registered Land, Insolvency

Updated: 23 November 2022; Ref: scu.450231

Shepherd v Official Receiver: CA 7 Jun 2007

renewed application for permission to appeal

Judges:

Chadwick LJ

Citations:

[2007] EWCA Civ 606, [2007] BPIR 101

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Osborne v Cole 1999
A person who challenges a bankrupt’s trustee’s conduct under section 303 must show that the trustee is acting ‘in bad faith or so perversely that no trustee properly advised or properly instructing himself could so have acted, alternatively if he . .

Cited by:

Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 23 November 2022; Ref: scu.253690

Lloyds Bank Plc and others v Cassidy: CA 1 Dec 2004

The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.
Held: The judge should not be provided with a document which was not also to be provided to the other party. The failure to do so was a procedural irregularity. In this case however the transcript had been provided in time for the defence counsel to make use of it for his closing summary, and no prejudice had in fact occurred. The other grounds of appeal failed. Appeal dismissed.

Judges:

Lord Justice Auld, Lord Justice Chadwick, Lord Justice Clarke

Citations:

[2004] EWCA Civ 1767, Times 11-Jan-2005

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Lloyds Bank Plc and others v Cassidy CA 8-Nov-2002
. .
Cited – Meftah v Lloyds TSB Bank ChD 2001
Receivers of property under charge are not obliged before sale to spend money on repairs. . .
Cited – Routestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
Cited – Garland v Ralph Pay and Ransom 1984
Receivers taking possession of a property are not under an obligation to make the property more attractive before marketing it. . .
Cited – Palk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .

Cited by:

See Also – Lloyds Bank Plc and others v Cassidy CA 8-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence, Litigation Practice

Updated: 23 November 2022; Ref: scu.220666

Owo-Samson v Barclays Bank Plc, Boyden: CA 21 May 2003

The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was perceived to be recalcitrant and unco-operative.
Held: The statutory demand could only include sums due at that time to the bank, and had been included wrongly. Similarly it was inappropriate to try to include speculative costs. At later stages, such contingent liabilities might properly be allowed for (but still excluding addition costs associated with the character of the bankrupt). The court had a discretion as to whether to allow cross examination.

Judges:

Ward, Carnwath LJJ, Newman J

Citations:

[2003] EWCA Civ 714, Times 27-May-2003, Gazette 17-Jul-2003, [2003] BPIR 1373

Links:

Bailii

Statutes:

Insolvency Rules 1986, Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Applied – Platts v Western Trust and Savings Ltd CA 9-Jun-1993
The court examined the extent of the Judge’s discretion on hearing an application to set aside a statutory demand. When property was valued for the purposes of a statutory demand, it should be as on a forced sale. A ‘forced sale’ was taken as one . .
Cited – Re a Debtor ChD 1994
The ordinary procedure of an insolvency involves two-stage, a statutory demand followed by a bankruptcy petition. The service of a ‘statutory demand’ in the prescribed form is simply one means of establishing ‘inability to pay’. The procedure is . .
Cited – Re Button 1905
A secured petitioner’s estimate of the value of his property was challenged.
Held: The petitioner’s estimate was made ‘at his own risk’, in that, if at undervalue, he would still be bound by it in the bankruptcy; but that, provided the . .
Cited – Royal Bank of Scotland v Farley CA 1996
If it can be demonstrated by evidence subsequent to the bankruptcy order, that the debts on which the petition was founded did not exist, then it would be right to say that there was a ground existing at the time the order was made on which it . .
Cited – Holder and Others v APC Supperstone and Others ChD 24-Nov-1999
Tenants obtained a charging order against their landlord, and, after his bankruptcy, incurred substantial costs defending their charge against other claimants. The trustee declined to allow payment of the costs.
Held: The costs were properly . .
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 . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency

Updated: 23 November 2022; Ref: scu.182349

Greenhaven Motors Limited (In Liquidation) and Another v BG Funding Limited and Another: CA 31 Jul 1998

Citations:

[1998] EWCA Civ 1365

Statutes:

Insolvency Act 1986 167

Jurisdiction:

England and Wales

Citing:

Cited – In re Edennote Ltd (No 2) ChD 1997
Sanction was sought against a liquidator. Lightman J said: ‘The question is the commercial best interests of the company, reflected prima facie, by the commercial judgment of the liquidator, a judgment in my view which, in the circumstances and in . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 23 November 2022; Ref: scu.144844

Anglo American Investments Limited v Barber: CA 22 Jul 1998

The defendant had borrowed money from the plaintiff, and a director made an oral promiose not to seek repayment until the defendant could afford it. The claimant went into liquidation.
Held: The defence was incredible and had no prospect of success.

Citations:

[1998] EWCA Civ 1258

Jurisdiction:

England and Wales

Citing:

Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Updated: 23 November 2022; Ref: scu.144737

Levy v Legal Aid Board: ChD 24 Feb 2000

Although an order for costs might in some circumstances not be provable in an insolvency, that did not prevent a statutory demand based upon that debt. Whether it was provable would become clear in the later insolvency proceedings. The court had a discretion to found a petition on an unproveable debt where there were special circumstances such as, for example other debts which were provable.

Citations:

Gazette 24-Feb-2000, Gazette 16-Mar-2000

Statutes:

Insolvency Rules 1986/1925 12 3 (2) (a)

Jurisdiction:

England and Wales

Costs, Legal Aid, Insolvency

Updated: 22 November 2022; Ref: scu.83037

Baker (Liquidator of TMG Brokers Limited) v Staines and Another: ChD 23 Apr 2021

Application by the Company and its liquidator seeking declarations in relation to certain payments, pursuant to section 212 of the Insolvency Act 1986 and consequential orders against the First Respondent and the Second Respondent, both of whom were directors and shareholders of the Company.

Judges:

Insolvency and Companies Court Judge Burton

Citations:

[2021] EWHC 1006 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 22 November 2022; Ref: scu.662202

Mond and Another v MBNA Europe Bank Ltd: ChD 9 Jul 2010

The claimants seek declarations that the defendant, which is a provider of consumer credit by means of credit card accounts, contravened various terms of the so-called IVA Protocol when voting against the proposal for an IVA put forward by a debtor whom I will refer to simply as C.

Judges:

Sir William Blackburne

Citations:

[2010] EWHC 1710 (Ch), [2010] BPIR 1167, [2011] Bus LR 513

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 22 November 2022; Ref: scu.420699

Spendlove Daughter of Charles Spendlove, And Mary His Wife, Who Was Sister of John Lambert Deceased v John Aldrich And Mary His Wife, Henry Capps, Samuel Hartly, Samuel Wade And John Wade: 1790

If a man makes two persons his executors and residuary legatees and dies, and then one of the executors becomes a bankrupt, a legatee under the wilt is intitled to recover front the other out of any part of the testator’s estate in his hands what remains due of his legacy, notwithstanding he had received interest upon it from the bankrupt for several years after it became payable, if the bankrupt would not during that time pay the principal, particularly if he were an infant during that time.

Citations:

[1790] EngR 1186, (1790) 2 Ld Raym 1320, (1790) 92 ER 362

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Insolvency

Updated: 22 November 2022; Ref: scu.364239

Lexi Holdings Plc v Luqman and others: CA 29 Aug 2007

Claim by valuers on administration of mortgage company for sums paid to the company by lenders to pay for valuations.

Citations:

[2007] EWCA Civ 1070

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Lexi Holdings Plc v Luqman and others ChD 2-Jul-2007
Application was made for the committal to prison for contempt of court by the first defendant for breaches of court orders. . .
Application for leave – Lexi Holdings v Luqman and others CA 6-Aug-2007
Application for permission to appeal – granted. . .

Cited by:

See Also – Lexi Holdings Plc v Luqman and others ChD 19-Oct-2007
. .
See Also – Lexi Holdings Plc v Luqman and others ChD 16-Nov-2007
. .
Cited – Lexi Holdings Plc v Luqman and others ChD 15-Jan-2008
Whether a prisoner serving a sentence for contempt of court is subject to the same rules as to early release etc as other prisoners.
Held: ‘paragraph 5.2 of PSO 6300 is unlawful in so far as it purports to require, or is interpreted by the . .
See Also – Lexi Holdings v Luqman and Another ChD 16-Jul-2008
. .
See Also – Lexi Holdings Plc v Luqman and others CA 26-Feb-2009
Attempts by company administrators to recover sums allegedly misapplied by former directors. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 22 November 2022; Ref: scu.260267

Re Welsh Brick Industries Ltd: CA 1946

In a disputed debt case a winding-up order had been made by the county court judge. Notwithstanding that the company had been given unconditional leave to defend the petitioner’s action in the King’s Bench Division for recovery of the debt, it was held that the winding-up court was not precluded from going into the merits of the dispute for itself and the order made below was affirmed. Lord Greene MR quoted Buckley on the Companies Acts: ‘A winding-up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. A petition presented ostensibly for a winding-up order but really to exercise pressure will be dismissed and under circumstances may be stigmatised as a scandalous abuse of the process of the court. Some years ago petitions founded on disputed debt were directed to stand over till the debt was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern practice has been to dismiss such petitions. But, of course, if the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order.’

Judges:

Lord Greene MR

Citations:

[1946] 2 All ER 197

Jurisdiction:

England and Wales

Cited by:

Cited – Commissioners of Customs and Excise v Anglo German Breweries Limited ChD 29-Nov-2002
The respondents appealed against imposition of assessments for the diversion of alcohol products from bonded warehouses without payment of duties. Pretence had been made of deliveries abroad, but the goods were later diverted. The company was . .
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

Updated: 20 November 2022; Ref: scu.181333