Category: Insolvency

Re Arrows Ltd (In Liquidation): Chd 1 Jul 1992

Liquidators seeking information from directors were allowed to undertake not to disclose any information gathered to the Serious Fraud Office. Such an undertaking having been given a former company director was not able to refuse to answer questions put to him.

Citations:

Times 01-May-1992, Gazette 01-Jul-1992

Statutes:

Insolvency Act 1986 236(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Re Arrows Ltd (No 4) CA 8-Apr-1993
A Civil Court cannot stop the Serious Fraud Office using evidence which had been gathered under compulsion during Insolvency interviews under s236. Any element of confidentiality was overriden. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 31 March 2022; Ref: scu.85714

Re Associated Travel Leisure and Services Ltd (in liquidation): ChD 1978

It is possible to give retrospective sanction for acts which require the sanction of the court where such sanction has not been obtained in advance, in this case to authorise the liquidators to pay the costs of the solicitors out of the estate of the Company.

Judges:

Templeman J

Citations:

[1978] 2 All ER 273, [1978] 1 WLR 547

Jurisdiction:

England and Wales

Cited by:

Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 31 March 2022; Ref: scu.244194

A Company v Andy Thornton Contracts Ltd: ChD 20 Nov 2013

Company’s application to restrain advertisement of petition for its winding up.
Held: The application was dismissed. The amount established of any counterclaim wasnot enough to displace the debt claimed, leaving an excess sufficient to found the petition.

Judges:

Nugee J

Citations:

[2013] EWHC 4291 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 28 March 2022; Ref: scu.592402

Re Lehman Brothers Europe Ltd: ChD 3 Aug 2017

The joint administrators of Lehman Brothers Europe Limited (In Administration) have applied for directions that would enable a substantial surplus to be distributed to the sole member of LBEL, Lehman Brothers Holdings plc (In Administration), while the Company remains in administration.

Judges:

Hildyard J

Citations:

[2017] EWHC 2031 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 28 March 2022; Ref: scu.591439

Officeserve Technologies Ltd and Another v Anthony-Mike: ChD 28 Jul 2017

Judgment on certain preliminary issues

Judges:

Paul Matthews HHJ

Citations:

[2017] EWHC 1920 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 8127

Jurisdiction:

England and Wales

Citing:

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

Insolvency

Updated: 28 March 2022; Ref: scu.591434

Vinyls Italia Spa in liquidation v Mediterranea di Navigazione SpA: ECJ 8 Jun 2017

ECJ (Area of Freedom, Security and Justice – Insolvency Proceedings : Judgment) Reference for a preliminary ruling – Area of freedom, security and justice – Insolvency proceedings – Regulation (EC) No 1346/2000 – Articles 4 and 13 – Acts detrimental to all the creditors – Conditions in which the act in question may be challenged – Act subject to the law of a Member State other than the State of the opening of proceedings – Act which is not open to challenge on the basis of that law – Regulation (EC) No 593/2008 – Article 3(3) – Law chosen by the parties – Location of all the elements of the situation concerned in the State of the opening of proceedings – Effect

Citations:

[2017] WLR(D) 385, [2017] EUECJ C-54/16

Links:

Bailii, WLRD

Jurisdiction:

European

Insolvency

Updated: 27 March 2022; Ref: scu.588308

The Co-Operative Bank Plc v Desmond Victor John Phillips: ChD 2 Jun 2017

Appeal from summary judgment given against the defendant on his counterclaim ‘for breach of contract, negligence, negligent misstatement, misrepresentation and breach of statutory duty’

Judges:

Paul Matthews HHJ

Citations:

[2017] EWHC 1320 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Banking

Updated: 27 March 2022; Ref: scu.588023

O’Keefe and Another (Liquidators of Level One Residential (Jersey) Ltd and Special Opportunity Holdings Ltd) v Caner and Others: ChD 15 May 2017

The court considered whether Jersey law operated to disbar the claims against several defendants by limitation.

Judges:

Keyser QC HHJ

Citations:

[2017] EWHC 1105 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Limitation

Updated: 26 March 2022; Ref: scu.583992

Hope v Revenue and Customs: ChD 6 Apr 2017

By a Part 7 claim, the Respondent to a bankruptcy petition presented by Her Majesty’s Revenue and Customs (‘HMRC’), Emma Hope, seeks to set aside a previous judgment of the High Court, on the ground that the it was obtained as a result of fraudulent misrepresentations. The claim also seeks damages for HMRC’s ‘acts of fraud and/or negligence/and or breach of statutory duty’. The Revenue now applied to strike out the claim.
Held: It was struck out.

Judges:

Briggs Reg

Citations:

[2017] EWHC 812 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 252

Jurisdiction:

England and Wales

Insolvency, Taxes Management

Updated: 26 March 2022; Ref: scu.583988

Formosa Plastics Corporation USA v Chauhan and others: CA 6 Apr 1998

The defendant sought a second adjournment of his application for leave to appeal against summary judgment for $21m with interest in respect of a judgment obtained in Texas. The defendant was said to have given his personal guarantee for the purchase price of goods sold and delivered.
Held: The request was rejected. Counsel for the defendant acknowledged that he would be struggling to find a defence, and no effective defence had yet been filed. There was no arguable defence, and those previously indicated had not now been pursued, and in particular the arguments based upon unpleaded fraud and breach of natural justice.
The order under section 423 had been on the basis that property here had been held in the names of others to protect them against his creditors.

Judges:

Simon Brown LJ, Sir Patrick Russell

Citations:

[1998] EWCA Civ 641

Links:

Bailii

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Citing:

Applied – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 25 March 2022; Ref: scu.144119

Taylor v Van Dutch Marine Holding Ltd and Others: ChD 27 Mar 2017

Application by a secured creditor of a defendant against whom a freezing order has been made seeking an amendment to the freezing order to the effect that nothing in the order should prevent or restrict it from enforcing any rights it might have pursuant to its facility agreement and debenture.

Judges:

Mann J

Citations:

[2017] EWHC 636 (Ch), [2017] WLR(D) 213

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Contract, Insolvency, Litigation Practice

Updated: 24 March 2022; Ref: scu.581331

Matthew Boulton, Esq and Others, Creditors of Samuel Garbet, A Bankrupt v Messrs Mansfield, Ramsay, and Co of Edinburgh,: HL 18 Apr 1787

Copartnery. – An agreement dissolved a Company, and transferred the retiring partner’s interest in stock, andc. of the concern, to the other partners, but provided that he was still to have a share of the profits of the concern. In a question with creditors, held, that the person so retiring was still a partner of the firm, and liable as such.

Citations:

[1787] UKHL 3 – Paton – 70

Links:

Bailii

Jurisdiction:

Scotland

Company, Insolvency

Updated: 23 March 2022; Ref: scu.581019

The Governor and Company of The Bank of England v William Pulteney, Esq: HL 14 Dec 1787

Heritable Security – Ranking – Indefinite Payments – Assignation. – A creditor held an heritable security for repayment of his advances, to the extent of andpound;12000. He also held an adjudication debt against the same debtors, for a bank debt paid by him for them, which was not included in the heritable bond. On the bankruptcy of the debtors, and ranking and sale of their estate, Held, that he was entitled to impute indefinite payments made to him to his least secured debt, so as to make the heritable bond cover the whole debts due to him within the amount of that security; and, therefore, that he was preferable, both for the balance due on the bond debt, as well as for the adjudication debt. In this last debt, another party was bound as co-surety. Held, that on payment, he was not bound to grant the creditors an assignation to his claim.

Citations:

[1787] UKHL 3 – Paton – 92

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 23 March 2022; Ref: scu.581021

James Hill, Trustee On The Bankrupt Estate of Wilson and Brown v George and John Buchanan, Merchants In Glasgow: HL 11 Apr 1786

Sale – Bankruptcy. – 30 hogsheads of tobacco were bought on the eve of bankruptcy, and 8 hogsheads delivered the day before the failure was known, but the 22 hogsheads not delivered; the bills stipulated for the price were not granted; and the seller insisted for return of the 8 hogsheads. The bankrupts voluntarily returned them. Held, in a question with the creditors, that the seller was entitled to retain possession of the whole, on emerging bankruptcy.
The question in this case was, Whether a sale of tobacco, made by the respondents to Wilson and Brown, had been completed so as to pass the property before bankruptcy.

Citations:

[1786] UKHL 3 – Paton – 47

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 23 March 2022; Ref: scu.581012

Mrs Elizabeth Rose of Kilravock v James Rose, An Infant, and Francis Russel, Advocate, His Guardian: HL 2 Apr 1787

Succession – Heirs Primarily Liable – Relief among Heirs – Heirs whatsoever, how Interpreted? – Several estates belonging to the same ancestor, were together conveyed in security of debt by heritable bonds. Part of the estate descended, after his decease, to the heir of line, and another to the heir male. Held, reversing the judgment of the Court of Session, that the heir male has not relief against the heir of line, in so far as the bonds are charged on his estate.

Citations:

[1787] UKHL 3 – Paton – 66

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 23 March 2022; Ref: scu.581020

Re A Debtor (No 68 of 1992): ChD 1 Mar 1993

Date on which ‘grounds’ must exist for annulment of order. A bankrupt applying to annul an order must establish the grounds for annulment not at the date of the hearing of that application, but rather at the date when the order itself was made.

Citations:

Ind Summary 01-Mar-1993

Statutes:

Insolvency Act 1986 282(1)

Jurisdiction:

England and Wales

Insolvency

Updated: 23 March 2022; Ref: scu.85695

Goldfarb (Liquidator of Eurocruit Europe Ltd) v Poppleton: ChD 21 Jun 2007

The court was asked whether proceedings under section 212 brought by the liquidator against a former director of the company were barred by limitation, having been brought just within 6 years after the resolution for creditors’ voluntary liquidation, but more than 6 years after the last date on which any breach of duty relied on was alleged to have been committed.
Held: The cause of action accrued on the date of the breaches, not when the company went into liquidation, so that the claim was brought too late. Blackburne J said: ‘In my judgment, Mr Wilson’s submissions [for the liquidator] on this point do not pay sufficient regard to the significance of the fact, made clear by the authorities, that section 212 is procedural in nature. The true significance of that fact is that the section merely provides an alternative means, in terms of procedure, of enabling the company, to which the defaulting director’s duty was owed, to obtain recompense from the director for his breach of duty. If the liquidator chooses to name himself as the formal claimant in lieu of the company, his claim is by application, or (as appropriate) originating application, in the liquidation rather than by a claim form under CPR Part 7. The procedure is not available if it is intended to make someone other than a director (or other person falling within section 212) liable for the wrong to the company, for example a claim against a non-director (along with a director) for having conspired to harm the company; in such a case or where other claims not within section 212 are brought against a director, for example a straightforward claim in debt, the claim must be brought by the company. In each case, however, in substance the claimant is the company; the relief which is granted under section 212(3) is for the repayment, restoration or accounting (to the company) of the money or property of the company or for a contribution to be made ‘to the company’s assets by way of compensation’ for the wrong in question. … there is only a single cause of action, that of the company. All that section 212 does is give to the liquidator, if he wishes, the right to bring the claim in his own name.’

Judges:

Blackburne J

Citations:

[2007] EWHC 1433 (Ch), [2008] Bus LR 146

Links:

Bailii

Statutes:

Insolvency Act 1986 212

Jurisdiction:

England and Wales

Cited by:

Cited – Parkinson Engineering Services Plc v Swan and Another CA 21-Dec-2009
The court considered the scope of the court’s power to permit an amendment as regards parties outside a limitation period. The amendment in this instance was to substitute one claimant in place of another, namely the liquidator of a company instead . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 23 March 2022; Ref: scu.253764

Re Workvale Ltd (In Liquidation): CA 8 Apr 1992

A limited company was correctly restored to the register from dissolution so that its insurers could face an arguable claim. Where a first writ issued within the primary limitation period was ineffective (although not a nullity) through having been issued against a company which had been struck off the register, the Walkley principle does not defeat a second action in limine, despite the defect being curable, by having the company restored to the register.

Citations:

Gazette 08-Apr-1992, [1992] 1 WLR 416

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Distinguished – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Applied – White v Glass CA 17-Feb-1989
The plaintiff had sued his club under its name, but it was an unincorporated association, and the action was stricken out as improperly constituted. The first writ issued within the primary limitation period but was ineffective. The defendant . .

Cited by:

Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation, Personal Injury

Updated: 23 March 2022; Ref: scu.85903

Doodes v Gotham, Perry: ChD 17 Nov 2005

The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. Charges under the 1986 Act were unusual in that they were not preceded by a court action, and no immediate right of enforcement arose in favour of the trustee. ‘The Trustee’s rights against No. 22 under the 1992 Charge were, of course, created in consequence of the bankruptcy but I see them as being rights ‘unaffected’ by the bankruptcy just as are other rights of secured creditors. The rights under the charge subsist even after the bankruptcy has ended and could subsist even after the Trustee had ceased to be the chargee or the Bankrupt the chargor. Moreover, the rights are directed against the Bankrupt’s interest in No. 22, which is property taken out of the estate and vested not in the Trustee but in the Bankrupt himself. The rights are ‘outside the bankruptcy’ or ‘outside the statutory trust’ in the sense that it is not the statutory trust that the Trustee invokes against No. 22 but his rights as chargee. These considerations suggest to me that the Trustee’s rights as chargee should be vulnerable to limitation . . .’

Judges:

Lindsay J

Citations:

Times 25-Nov-2005, [2005] EWHC 2576 (Ch), [2006] 1 WLR 729

Links:

Bailii

Statutes:

Limitation Act 1980 20(1), Insolvency Act 1986 313

Jurisdiction:

England and Wales

Citing:

Cited – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .
Cited – Wilkinson and Another v West Bromwich Building Society CA 30-Jul-2004
The Society had repossessed and sold the mortgagors’ house in 1990. It knew then that there was a shortfall, but took no further recovery proceedings until 2002. What was the date from which the relevant limitation period began to run? Though the . .
Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Cited – In re General Rolling Stock Co; Joint Stock Discount Company’s Claim CA 21-Jun-1872
Upon a winding up: ‘A duty and a trust are thus imposed upon the Court, to take care that the assets of the company shall be applied in discharge of its liabilities. What liabilities? All the liabilities of the company existing at the time when the . .
Cited – In re Benzon CA 1914
Limitation applies where a claim is not against a bankrupt’s estate or is not a claim ‘in the bankruptcy’. . .
Cited – Cottrell v Price 1960
The rights of a secured creditor against his security were held to be rights ‘outside the bankruptcy’. As to the case of Benzon: ‘The importance of that case and of the way in which the doctrine is stated in the judgment of the Court is that it . .
Cited – Anglo-Manx Group Ltd v Aitken 2002
The court discussed the case of Cottrell v Price: ‘There was considerable argument before me as to what is meant by the words ‘in the bankruptcy’ as distinct from the words ‘outside the bankruptcy’. Mr Adair submitted that the question can be . .

Cited by:

Appeal from – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 23 March 2022; Ref: scu.235028

Singla v Hedman and Others: ChD 28 Apr 2010

The claimant sought an order for wrongful trading against the former directors of a company in liquidation, and to set aside agreements entered into after the liquidation, but backdated to before. The agreements related to the proposed making of a film.
Held: The first defendant had not been truthful.

Judges:

Peter Smith J

Citations:

[2010] EWHC 902 (Ch), [2010] BCC 684, [2010] 2 BCLC 61

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Singla v Hedman and Others ChD 27-Nov-2009
. .
Cited – Messager v British Broadcasting Association Co HL 1929
M composed of the music for a French opera ‘Le Petit Michus’. An English version was to be produced in London on the terms of an agreement, describing itself as a licence, between the composer and the authors of the opera, between the licensors, and . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Contract

Updated: 09 February 2022; Ref: scu.408672

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.

Citations:

Times 24-Dec-1996, [1997] 1 BCLC 313

Statutes:

Insolvency Rules 1986 (SI 1986 No 1925) 4.218(1) 4.220(1)

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 09 February 2022; Ref: scu.89690

Phillips and others v Symes and others: ChD 12 Jul 2006

Citations:

[2006] EWHC 1721 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Phillips and Another v Robin James Symes and Robin Symes Ltd ChD 9-Jul-2001
English proceedings were issued to claim against a partnership. Simultaneously proceedings were issued in Greece, but the Greek proceedings were served on the London parties first. The plaintiffs in Greece asked the English court to issue a stay of . .
See Also – Phillips v Symes CA 2003
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of . .
See Also – Phillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
See Also – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Zamar had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought. . .
See Also – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq etc ChD 20-Oct-2004
. .
See Also – Symes v Phillips and others CA 6-May-2005
. .
See Also – Symes v Phillips and others CA 19-May-2005
The applicant was in contempt of court. He successfully appealed a sentence of two years imprisonment, with the sentence being reduced to one year. Legally aided, he sought his costs from the claimant. The claimant replied that their part was only . .
See Also – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis) v Symes (A Bankrupt), Nussberger, Galerie Nefer Ag, Geoff Rowley ChD 19-Aug-2005
The court allowed the appellant’s application to dispense with service of a claim form under the rule. The High Court became seised of the matter as at 19 January 2005. Further directions were given. . .
See Also – Phillips and Another v Symes and Others (No 6) CA 19-May-2006
Proceedings were issued in England for service on the defendant in Switzerland, but because of an error by the Swiss Court were not properly served. Proceedings were then issued in Sitzerland, and seisin was claimed for the Swiss Court. The claimant . .

Cited by:

See Also – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
See Also – Phillips and others v Symes and others ChD 16-Oct-2006
. .
See Also – Phillips and Another v Symes and others HL 23-Jan-2008
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 07 February 2022; Ref: scu.243072

Rooney v Cardona and Another: ChD 24 May 1999

The trustee in bankruptcy had absolute priority for payment of his fees, costs, charges and disbursements only until the point where the bankrupts assets were transferred to a supervisor of a subsequent voluntary arrangement.

Citations:

Times 24-May-1999

Statutes:

Insolvency Rules 1986 (1986 No 1925) 5.21.2

Jurisdiction:

England and Wales

Insolvency

Updated: 07 February 2022; Ref: scu.88857

Re Ledingham-Smith: ChD 1993

The bankrupt’s accountants had been paid their fees by standing order. Arrears mounted and the sum was increased. On the bankruptcy, the trustee sought to recover the increased payment. The court considered whether they had been given a preference.
Held: The accountants had continued to act, and therefore were not in a better position than they would have been had they stopped work and not been paid. To be a preference, there had to be shown evidence of a ‘preference in fact’. Morritt J said that: ‘it may be that pressure does not displace desire in the way that it formerly displaced a dominant intention to prefer but it can certainly affect the question of desire.’
and ‘The phrase ‘will be better’ in relation to the event of the individual’s bankruptcy used in Section 340(3)(b) envisages a bankruptcy after the doing of the thing in question. It also predicates that the position will be better, not may be.’

Judges:

Morritt J

Citations:

[1993] BCLC 635

Statutes:

Insolvency Act 1986 249 435

Jurisdiction:

England and Wales

Cited by:

Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 February 2022; Ref: scu.216394

Steele, Regina (on the Application Of) v Birmingham City Council: Admn 19 Apr 2005

Action to recover overpayment of benefits: ‘whether overpaid social security benefits constitute a ‘bankruptcy debt’, and, if so, whether the benefits authorities are entitled to continue to recover overpaid social security benefits by way of deduction from ongoing entitlements after a claimant is discharged from bankruptcy. ‘

Judges:

Gibbs J

Citations:

[2005] EWHC 783 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Steele, Regina (on the Application of) v Birmingham City Council and The Secretary of State for Work and Pensions CA 16-Dec-2005
The claimant had received an overpayment of benefits (Job seeker’s allowance), but then was made bankrupt. He now said that this was a debt in the bankruptcy.
Held: It was not. At the date of the bankruptcy order, the possible reclaim was not . .
Lists of cited by and citing cases may be incomplete.

Benefits, Insolvency

Updated: 07 February 2022; Ref: scu.224936

Petition – Jamieson (Official Liquidator of The Garbel Haematite Co Ltd): SCS 19 Jul 1877

An official liquidator, who had been appointed by the Court to wind up a company incorporated under the Companies Acts 1862 and 1867, applied under section 91 of the Act of 1862 for leave to resign. It was stated that there was nothing to recover from the bankrupt estate, and the application was concurred in by, and appearance made for, all the original petitioning creditors, who were substantially the whole creditors of the company. The application was not opposed. Held that in the circumstances it might be granted.

Citations:

[1877] SLR 14 – 667 – 1

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 06 February 2022; Ref: scu.577208

Yapp, Assignee Of Partington, An Insolvent, v Harrington: 9 Jun 1837

Under the Insolvent Debtors’ Act, 7 0. 4, e. 57, s. 34, where actual imprisonment within the walls of a prison follows upon arrest, as one continuous act, within the usual. time allowed by the course of practice, the arrest is the commencement of the imprisonment : but where after arrest any delay not sanctioned by law takes place before the actual commitment of the Defendant to prison, there, not the arrest, but the actual coming within the walls of the prison, is the commencement of the imprisonment.

Citations:

[1837] EngR 826, (1837) 3 Bing NC 907, (1837) 132 ER 660

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 06 February 2022; Ref: scu.313943

Green (Supervisor of The Iva of Wright) v Wright: CA 1 Mar 2017

The court was asked whether a trust in favour of creditors constituted by an individual voluntary arrangement (IVA) survives the issue of a certificate of completion of the IVA, so that property of the debtor, that was subject to the trust but was discovered only after the issue of the certificate, remains subject to the trust once it is discovered. Resolution of this issue turns on the proper construction of the terms of the IVA, in the context of its factual background, the relevant statutory regime and applicable legal principles.

Judges:

David Richards, Irwin LJJ

Citations:

[2017] EWCA Civ 111

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 06 February 2022; Ref: scu.578204

Elser v Sands and Others: ChD 22 Dec 2021

Trial of an application to set aside a chairman’s decision to allow three creditors to vote at a meeting held for the purpose of approving a voluntary arrangement

Judges:

Chief ICC Judge Briggs

Citations:

[2022] EWHC 32 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 06 February 2022; Ref: scu.671232

Banca Carige Spa Cassa Di Risparmio Di Genova E Imperia v Banco Nacional De Cuba and Another: ChD 11 Apr 2001

Application to discharge order declaring that leave was not needed for service of proceedings on the defendant out of the jurisdiction.

Judges:

Lightman J

Citations:

[2001] EWHC 562 (Ch), [2001] 2 Lloyd’s Rep 147, [2001] 2 BCLC 407, [2001] BPIR 407, [2001] Lloyd’s Rep Bank 203, [2001] 1 WLR 2039, [2001] 3 All ER 923

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Jurisdiction, Litigation Practice

Updated: 03 February 2022; Ref: scu.577490

Syme v Benhar Coal Co: SCS 12 Dec 1878

An application was presented to the Court by the provisional liquidator of a limited company to restrain a debenture holder from obtaining decree for the amount contained in his debenture bond. Held that the debenture holder was entitled to have decree, the liquidator not being prepared to find security for any damages the creditor might suffer, and application refused.
Held: Reid, a creditor of the Benhar Coal Company, had presented a petition for the judicial liquidation of the company. Upon representations by the company to the effect that they wished to investigate their affairs fully, and would require time, the Court of consent meantime appointed Mr Molleson, C.A., provisional liquidator.
In these circumstances, and Reid’s petition being still in Court, Thomas Syme, a debenture holder, raised an action in the Court of Session concluding for payment of andpound;1000, the amount contained in certain debenture bonds which he held of the company, and the provisional liquidator, with the concurrence of the company, in these circumstances presented a note to the Court applying to have Syme restrained from obtaining such decree.
The 85th section of the Companies Act 1862 was as follows:-‘The Court may, at any time after the presentation of a petition for winding-up a company under this Act, and before making an order for winding-up the company, upon the application of the Company, or of any creditor or contributory of the company, restrain further proceedings in any action, suit, or proceeding against the company, upon such terms as the Court thinks fit.’

Citations:

[1878] SLR 16 – 210

Links:

Bailii

Jurisdiction:

Scotland

Company, Insolvency

Updated: 03 February 2022; Ref: scu.577487

Day v Haine and Another: ChD 19 Oct 2007

The liquidator sought directions from the court after former employees of the company submitted proofs of debt in respect of protective awards made for the company’s failure to consult on their redundancy before going into liquidation.
Held: The Act provided one remedy only for enforcement, and the debts were not provable. At the date of the liquidation, the employees had no contingent or other debt capable of being proved.

Judges:

Sir Donald Rattee

Citations:

Times 28-Dec-2007, [2007] EWHC 2691 (Ch), [2008] ICR 452

Links:

Bailii

Statutes:

Insolvency Act 1986 112, Trade Union and Labour Relations (Consolidation) Act 1992

Jurisdiction:

England and Wales

Citing:

Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .

Cited by:

Appeal from – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Cited – Casson and Another v The Law Society Admn 20-Oct-2009
Two solicitors had been made bankrupt and then discharged from bankruptcy. They suffered adjudications by the SDT awarding compensation for matters occurring before the bankruptcies. They appealed, saying that the awards were bankruptcy debts from . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 02 February 2022; Ref: scu.263653

Henderson v Foxworth Investments Ltd and Another: SCS 1 Mar 2013

(Extra Division Inner House) The liquidator sought to have set aside the sale of a substantial hotel with golf courses on the basis that it was at an undervalue, with the buyer being aware of the seller’s potential insolvency. He appealed against a finding that the buyer had also assumed debts sufficient to give full value.
Held: The Lord Ordinary had erred in law. He had made no finding that the assumption of the debts had occurred with the sale so as to become part of the consideration, and without that finding, he had not been entitled to hold that the alienation of the property had been made for adequate consideration or, given the knowledge of the circumstances, that Foxworth had obtained the standard security in good faith. Moreover, the Lord Ordinary had not given satisfactory reasons for his conclusions and the issue was therefore at large for the appellate court. On the evidence before it, it was now held that the sale had been a gratuitous alienation, and that Foxworth had not obtained its rights under the standard security in good faith or for value. Decree was therefore granted for the reduction of the standard security.
Lady Paton said: ‘The consideration allegedly given in exchange for the granting of the disposition of Letham Grange to NSL required to be enforceable (ie able to be vindicated) at the time when the disposition was granted on 12 February 2001. On the Lord Ordinary’s own findings, however, there was no enforceable obligation binding NSL to repay Liu family loans as at that date. Taken in context, I am quite unable to read the words ‘part of the loan’ in the penultimate line of para 90 of the Lord Ordinary’s opinion as being referable to the precise or calculated figure of andpound;1.85 million but, even if they were so read, I doubt whether, in the absence of any documentation whatsoever, the ‘decision’ in question could properly be regarded as any more than a statement of intent on the part of Mr Liu. . . It was not open to the Lord Ordinary to accept that consideration was given in exchange for the disposition granted in the form of some vague obligation undertaken by NSL to repay Liu family debt.’

Judges:

Lady Paton

Citations:

[2013] ScotCS CSIH – 13, 2013 SLT 445

Links:

Bailii

Statutes:

Insolvency Act 1986 242

Jurisdiction:

Scotland

Citing:

Opinion – Henderson v Foxworth Investments Ltd SCS 12-Apr-2011
Outer House – The pursuer was liquidator of a Company, suing for declarator that ‘the pretended standard security’ granted by the second defenders in favour of the first defenders in respect of subjects was void and unenforceable; and for production . .
Costs at Outer House – Henderson v Foxworth Investments Ltd and Another SCS 17-Jun-2011
The court having assoilzied the defendant in the claim now considered an application for costs. . .
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 01 February 2022; Ref: scu.471308