Category: Insolvency

In Re Daintrey, Ex Parte Holt: QBD 8 May 1893

The court was asked whether a letter could be admitted in evidence and relied upon as an act of bankruptcy. The letter was sent by the debtor to the creditor at a time when there was no dispute, headed ‘without prejudice’. It contained an offer of composition but threatening that payment would be suspended unless the offer was accepted.
Held: The court will not permit the phrase ‘without prejudice’ to be used to exclude an act of bankruptcy. The letter was admissible. There was no dispute and no offer of compromise, so the sender could not destroy the admissibility of the letter as evidence simply by heading the letter ‘without prejudice’, the protection afforded by that phrase being limited to negotiations for compromise.
Vaughan Williams J said: ‘Moreover, we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words ‘without prejudice’ are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character.’
He stated the conditions for the application of the ‘without prejudice’ rule as follows: ‘In our opinion the rule which excludes documents marked ‘without prejudice’ has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation, and it seems to us that the judge must necessarily be entitled to look at the document in order to determine whether the conditions, under which alone the rule applies, exist. The rule is a rule adopted to enable disputants without prejudice to engage in discussion for the purpose of arriving at terms of peace, and unless there is a dispute or negotiations and an offer the rule has no application. It seems to us that the judge must be entitled to look at the document to determine whether the document does contain an offer of terms. Moreover we think that the rule has no application to a document which, in its nature, may prejudice the person to whom it is addressed. It may be that the words ‘without prejudice’ are intended to mean without prejudice to the writer if the offer is rejected; but, in our opinion, the writer is not entitled to make this reservation in respect of a document which, from its character, may prejudice the person to whom it is addressed if he should reject the offer, and for this reason also we think the judge is entitled to look at the document to determine its character.’

Vaughan Williams J
[1893] 2 QB 116, [1893] UKLawRpKQB 83
Commonlii
England and Wales
Cited by:
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Cited – Ofulue and Another v Bossert HL 11-Mar-2009
The parties disputed ownership of land, one claiming adverse possession. In the course of negotations, the possessor made a without prejudice offer to purchase the paper owner’s title. The paper owner claimed that this was an acknowledgement under . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 10 December 2021; Ref: scu.243127

Highberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1): ChD 25 Nov 2002

Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of Justice (although not the subject of decision) in relation to insolvency proceedings brought directly by bondholders.

Lawrence Collins J
[2002] EWHC 2503 (Ch), [2003] 1 BCLC 290
Bailii
England and Wales
Cited by:
Cited – Elektrim SA v Vivendi Holdings 1 Corp CA 24-Oct-2008
The court considered the construction of a ‘no action’ clause in a bond, under which clause only the trustee would have the right to take action to enforce it. . .
See Also – Colt Telecom Group Plc, In the Matter of the Insolvency Act 1986 ChD 20-Dec-2002
. .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 06 December 2021; Ref: scu.178480

Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa: ChD 29 May 2012

Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an establishment for the purposes of the Insolvency Regulation the following qualities must be present on the date the petition was presented:
(1) a place of operations, at which –
(2) the company carries out an activity which is:
(a) economic, and
(b) non-transitory,
(3) with
(a) human means, and
(b) assets. OA satisfied each of those conditions.

Sir Andrew Morritt Ch
[2012] EWHC 1413 (Ch)
Bailii
Insolvency Act 1986, Pensions Act 1995, Council Regulation (EC) 1346/2000
England and Wales
Citing:
Cited – Staubitz-Schreiber (Area of Freedom, Security and Justice) ECJ 17-Jan-2006
ECJ Judicial cooperation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Temporal application – Court having jurisdiction . .
Cited – Interedil Srl, in liquidation v Fallimento Interedil Srl, Intesa Gestione Crediti SpA ECJ 20-Oct-2011
interedill2ECJ2011
ECJ Reference for a preliminary ruling – Whether a lower court has the power to refer a question to the Court for a preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International . .
Cited – Trillium (Nelson) Properties Ltd v Office Metro Ltd ChD 9-May-2012
Winding-up petition in which the principal issue is whether or not Office Metro Limited can be wound up in this jurisdiction in the light of the fact that, despite its being an English registered company, its centre of main interest is in . .

Cited by:
Appeal from – Olympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
At First Instance – Olympic Airlines Sa Pension and Life Assurance Scheme, The Trustees of The v Olympic Airlines Sa SC 29-Apr-2015
The airline was incorporated in Greece but with an office in the UK. It became insolvent leaving a deficit in the UK employee pension scheme. The trustees of the fund sought a secondary insolvency within the UK, and now a reference to the European . .

Lists of cited by and citing cases may be incomplete.

Insolvency, European, Financial Services, Employment

Updated: 06 December 2021; Ref: scu.459890

Carman v Yates: ChD 2005

When a civil judge thinks a witness may be lying, he should remember that witnesses may have different reasons for lying, and effectively give himself a Lucas direction.

Charles J
[2005] BPIR 476
England and Wales
Citing:
Cited – Regina v Lucas (Ruth) CACD 1981
People sometimes tell lies for reasons other than a belief that they are necessary to conceal guilt.
Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:-
(1) . .

Cited by:
Cited – 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, Litigation Practice

Updated: 06 December 2021; Ref: scu.242122

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 insolvent even without the impositions, but sought to delay the winding up to resolve its appeal against the impositions.
Held: Where there was a substantial and properly disputed debt, winding up would be delayed. However this is not a disputed debt, because it was deemed to be due once the assessment was issued. Did the appeal disturb that position? This is an excise duty case not a customs case, and the Customs Code did not apply. The debt was not suspended by the appeal. On the facts it was impossible to conclude that any fraud had taken place other than at the offices of the applicants.

Mr Justice Lawrence Collins
[2002] EWHC 2458 (Ch), [2003] BTC 5021
Bailii
Finance Act 1994 12(3), Value Added Tax Act 1994 73(7A)
England and Wales
Citing:
Cited – 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 . .
Cited – Commissioners of Customs and Excise v Broomco (1984) Ltd (Formerly Anchor Foods Ltd) CA 17-Aug-2000
When an appeal is lodged in a VAT dispute, the discretion as to whether to require the appellant to lodge security for costs in the appeal, was a decision exclusively to be decided by the tribunal itself. A decision as to such security could not be . .

Cited by:
Cited – Greenalls Management Ltd v Customs and Excise HL 12-May-2005
Volumes of vodka were transferred from a secure warehouse to a carrier for export. They were diverted, and not exported and the Customs sought the unpaid duty from the warehouse. The Directive provided that duty was payable on the ‘release for . .
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, Insolvency

Updated: 06 December 2021; Ref: scu.178437

Colin Gwyer and Associates Ltd and Another v London Wharf (Limehouse) Ltd and Others: ChD 13 Dec 2002

The company passed a resolution. The claimant asserted that it was void, having been passed without proper consideration by the directors.
Held: A company director had a duty to establish what were the proper interests of a company before passing a resolution. That duty was both in his fiduciary duty to the company as director, and also as a paramount duty to creditors. In the absence of such consideration, a resolution could be declared void (as here). If such consideration was given, a court would be slow to substitute its own judgement.

Kosmin QC
Times 24-Jan-2003
England and Wales

Company, Insolvency

Updated: 06 December 2021; Ref: scu.178776

Thakrar v Ciro Citterio Menswear Plc In Administration: ChD 1 Oct 2002

Disputes arose between shareholders in a family company. Proceedings which expressly excluded the company were settled, but the company became insolvent. A later settlement was refused approval by the judge without the creditors consent. The claimant now sought a declaration that the earlier compromise bound the company. The company argued that the agreement was conditional upon its approval, and was therefore not binding.
Held: Proceedings might be settled in many ways. A Tomlin order gives effect to a pre-existing agreement. It was not conditional. It was argued that the agreement was unenforceable as illegal, breaching prohibitions in the 1985 Act. Any difficulties were capable of being cured, and the agreement was not unlawful.

The Vice-Chancellor
[2002] EWHC 1975 (Ch)
Bailii
Insolvency Act 1986 11(3)(d), Companies Act 1985 143(1) 151(1) 459
England and Wales
Citing:
Cited – Binder v Alachouzos CA 1972
A contract recited that the parties had been advised by solicitors and counsel that the Moneylenders Acts did not apply to transactions which were the subject of legal proceedings between them, and went on to provide for a compromise.
Held: . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 06 December 2021; Ref: scu.177332

AMP Enterprises Ltd v Hoffman and Another: ChD 25 Jul 2002

A creditor sought an order to replace the company liquidator.
Held: Such orders were discretionary, but courts should not grant them too readily. It was for the applicant to show good reason for the order. The circumstances would vary widely, and the court should not try to delimit the kind of situations where an application would succeed. Nevertheless a liquidator might be removed where he had failed to act vigorously, or had a perceived bias in favour of one section of creditors. Where a liquidator was subject to proper criticism, a court might be ready to order his removal. The court must also bear in mind the consequences in cost and delay of removal. This liquidator should not be removed. ‘In an application such as this, the court may have to carry out a difficult balancing exercise. On the one hand the court expects any liquidator, whether in a compulsory winding up or a voluntary winding up, to be efficient and vigorous and unbiased in his conduct of the liquidation, and it should have no hesitation in removing a liquidator if satisfied that he has failed to live up to those standards at least unless it can be reasonably confident that he will live up to those requirements in the future. . . On the other hand, if a liquidator has been generally effective and honest, the court must think carefully before deciding to remove him and replace him. It should not be seen to be easy to remove a liquidator merely because it can be shown that in one, or possibly more than one, respect his conduct has fallen short of ideal. Otherwise, it would encourage applications under s108 (2) by creditors who have not had their preferred liquidator appointed, or who are for some other reason disgruntled. Once a liquidation has been conducted for a time, no doubt there can almost always be criticism of the conduct, in the sense that one can identify things that could have been done better, or things that could have been done earlier. It is all too easy for an insolvency practitioner, who has not been involved in a particular liquidation, to say, with the benefit of the wisdom of hindsight, how he could have done better. It would plainly be undesirable to encourage an application to remove a liquidator on such grounds. It would mean that any liquidator who was appointed, in circumstances where there was support for another possible liquidator, would spend much of his time looking over his shoulder, and there would be a risk of the court being flooded with applications of this sort. Further, the court has to bear in mind that in almost any case where it orders a liquidator to stand down, and replaces him with another liquidator, there will be undesirable consequences in terms of costs and in terms of delay. ‘

Mr Justice Neuberger
Times 13-Aug-2002, Gazette 19-Sep-2002, [2002] EWHC 1989 (Ch)
Insolvency Act 1986 108(2)
England and Wales
Citing:
Followed – 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:
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.

Insolvency

Updated: 06 December 2021; Ref: scu.174700

Flightline Ltd v Edwards and Another: ChD 2 Aug 2002

Money had been paid into an account in the joint names of the parties’ solicitors in order to purchase the release of the applicants from an asset freezing order. The respondent company was in liquidation. It was argued that the payment of funds into the joint account made the claimant a secured creditor. The liquidators argued that the defendant was not a secured creditor since no proprietary interest in the fund has been created.
Held: The payment of funds into court did create a security. The payment into a bank account in the joint names of the solicitors was intended to create the same result. It could not be dealt with without an order of the court, and it was intended to secure a particular result in the litigation, and the money was paid into an escrow account, the effect of which was that it would inevitable be paid out on the happening of certain events.

Mr Justice Neuberger
Times 23-Aug-2002, Gazette 10-Oct-2002, [2002] 1 WLR 2535
Insolvency Act 1986 130
England and Wales
Citing:
Cited – Cretanor Maritime Co Ltd v Irish Marine Management Ltd CA 1978
A freezing order is relief in personam and creates no proprietary rights in the assets from time to time subject to it. Buckley LJ said that where an injunction required assets up to a stated value to be kept within the jurisdiction: ‘There must . .
Cited – In re Ford, Ex parte the Trustee 1900
. .
Cited – Halvanon Insurance Co Ltd v Central Reinsurance Corporation CA 1988
The fact that a contract was made by an unauthorised insurer contrary to the 1974 Act, which was silent as to the effect of a breach of this statute, did not render the contracts made by the unauthorised insurer void. Rendering transactions void . .
Cited – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
Cited – In re Multi Guarantee Ltd CA 1987
Nourse LJ said of the Condon Case: ‘The principle of cases such as those is that the court will direct a trustee in bankruptcy not to insist on his full legal rights if it would be unacceptable for him to do so. The principle is subject to . .
Appealed to – Edwards, Drummond Smith v Flightline Limited CA 5-Feb-2003
The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .

Cited by:
Appeal from – Edwards, Drummond Smith v Flightline Limited CA 5-Feb-2003
The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 06 December 2021; Ref: scu.174730

HM Revenue and Customs v The Football League Ltd and Another: Chd 25 May 2012

These proceedings concern the so called ‘football creditor rule’ operated by The Football League Limited (the FL). Its purpose and effect is to ensure that in the event of a member club becoming insolvent particular classes of creditors, such as other clubs in the FL, the club’s players, managers and other employees and the FL itself, are paid in full in priority to any other creditors. These preferred creditors are called ‘football creditors’ by the FL. It means, the FL acknowledges in its evidence, that football creditors will be paid in full before, for example, the St John Ambulance which provides first aid at many clubs’ grounds during matches.
Whether the provisions which together accord this priority are void and of no effect on the grounds that they are contrary to insolvency law.

Mr Justice David Richards
[2012] EWHC 1372 (Ch), [2012] Bus LR 1539, [2012] WLR(D) 163
Bailii, WLRD
England and Wales

Company, Insolvency

Updated: 06 December 2021; Ref: scu.459888

Spencer Michael v The Official Receiver, Secretary of State for Business, Innovation and Skills: ChD 15 Jul 2010

Application pursuant to section 4(2) of the Human Rights Act 1998 for a declaration that Schedule 4A paragraph 5(2) of the Insolvency Act 1986 and section 11 of the Company Directors Disqualification Act 1986 are incompatible with Article 6 of the European Convention on Human Rights.

Mr Justice Arnold
[2010] EWHC 2246 (Ch)
Bailii
Human Rights Act 1998, European Convention on Human Rights 6, Insolvency Act 1986, Company Directors Disqualification Act 1986 11
England and Wales

Human Rights, Company, Insolvency

Updated: 06 December 2021; Ref: scu.460455

Colt Telecom Group Plc, In the Matter of the Insolvency Act 1986: ChD 20 Dec 2002

The Hon Mr Justice Jacob
[2002] EWHC 2815 (Ch), [2007] Lloyd’s Rep PN 23, [2003] BPIR 324
Bailii
Insolvency Act 1986
England and Wales
Citing:
See Also – Highberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) ChD 25-Nov-2002
Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of . .

Cited by:
Mentioned – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence

Updated: 06 December 2021; Ref: scu.178547

The Funding Corporation Block Discounting Ltd v Lexi Holdings Plc: ChD 8 May 2008

The claimant sought a particular interest in the proceeds of sale of assets in the insolvent company, saying that they held equitable charges over the properties.

Briggs J
[2008] EWHC 985 (Ch), [2008] 2 BCLC 596, [2008] NPC 57
Bailii
Insolvency Act 1986 43(6)(b)
England and Wales

Insolvency

Updated: 06 December 2021; Ref: scu.267559

Tumer v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen: ECJ 12 Jun 2014

ECJ Opinion – Preliminary ruling – Directive 80/987/EEC – Directive 2002/74/EC – Protection of employees in case of insolvency of the employer – Employed a third State not holding a valid residence permit – Right the wage guarantee

Yves Bot AG
C-311/13, [2014] EUECJ C-311/13 – O, [2014] EUECJ C-311/13
Bailii, Bailii
Directive 80/987/EEC, Directive 2002/74/EC

European, Employment, Insolvency

Updated: 04 December 2021; Ref: scu.526692

Olympic Airlines Sa v ACG Acquisition Xx Llc: CA 17 Jun 2014

Moore-Bick, Rimer LJJ
[2014] EWCA Civ 821
Bailii
England and Wales
Citing:
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Dec-2012
The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent . .
At Commerial Court – ACG Acquisition Xx Llc v Olympic Airlines Sa ComC 21-Apr-2010
The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn . .
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Apr-2013
The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later . .

Lists of cited by and citing cases may be incomplete.

International, Insolvency

Updated: 04 December 2021; Ref: scu.526604

Contrarian Funds Llc v Lomas and Others: ChD 23 May 2014

The court considered the approach to be taken on applications for extensions of time to apply to challenge refusals of proof of debt in an insolvency, and how to test applications for relief from sanctions.
Held: The 1986 Rules which provided for extensions to time given for compliance with the Rules were not limited in their application to those concerned with litigation matters.

David Richards J
[2014] EWHC 1687 (Ch), [2014] WLR(D) 233
Bailii, WLRD
Insolvency Rules 1986
England and Wales

Insolvency, Litigation Practice

Updated: 04 December 2021; Ref: scu.526245

Bucci v Carman (Liquidator of Casa Estates (UK) Limited): CA 3 Apr 2014

The court was asked: ‘when is a company deemed to be unable to pay its debts, with the result that it is insolvent? The procedural issue is whether the intermediate appeal court was entitled to substitute its own evaluation of the facts upon which the answer to the legal question depends. ‘

Sullivan, McFarlane, Lewison LJJ
[2014] EWCA Civ 383
Bailii
England and Wales

Company, Insolvency

Updated: 02 December 2021; Ref: scu.523440

Bailey and Another v Angove’s Pty Ltd: CA 7 Mar 2014

The parties disputed the payment out of sums held by the company’s liquidators under an undertaking given by them. Their case was that if DandD (agents for the insolvent company) acted in the relevant respects as agents, their authority to collect the price of goods which they had sold on Angove’s behalf survived the termination of the ADA because they would need it to recover their commission.
Held: The Court accepted this argument and allowed the appeal on that basis. DandD’s authority was irrevocable because the general rule that authority can be revoked ‘must yield to what the parties have agreed should be their respective legal rights and obligations on the termination of the agency’. Construing the agreement, a continuing right to collect the price from the customer was implicit in (i) DandD’s right to deduct commission from the price before remitting it to Angove’s, and (ii) DandD’s obligation to account to Angove’s for the price within 90 days of the bill, whether or not it had by then been received from the customer. This was because these features of the agreement gave rise to liabilities of Angove’s to DandD, which could be set off against sale proceeds in DandD’s hands.

Patten, Lewison, Sharp LJJ
[2014] EWCA Civ 215, [2014] 2 BCLC 129
Bailii
England and Wales
Citing:
Appeal from – Bailey and Another v Angove’s PTY Limited ChD 2013
The liquidator of the company sought a declaration that sums received by the defendant sales agents on behalf of the insolvent company were to be paid out to the liquidators in full. The court was asked whether the payments by DWL and PLB made after . .

Cited by:
Appeal from – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Agency

Updated: 01 December 2021; Ref: scu.522276

Ellis-Carr v Levy (Home Rights : Requirements To Establish Interest): LRA 19 Nov 2013

LRA Family Law Act 1996 – home rights notice – meaning and effect of ‘intention’ in statute – Applicant’s evidence – property never occupied as a matrimonial home – whether husband ever had entitlement to occupy by virtue of a beneficial estate or interest or application – application opposed by Applicant’s husband’s trustee in bankruptcy – effect of orders relating to property made by Registrar Derrett in the bankruptcy upheld by Norris J on appeal – Mental Capacity Act 2005 – CPR 21 – s283A Insolvency Act – s261 Enterprise Act 2002

Judge Hargreaves
[2013] LRAD 2012 – 1122
Bailii
Family Law Act 1996

Registered Land, Family, Human Rights, Insolvency

Updated: 01 December 2021; Ref: scu.521988

Brodie v Bolton: 23 Jul 1835

The insufficiency of the fund to pay the debts is the only case in which the Plaintiff in a creditor’s suit is entitled to his costs as between solicitor and client.
The insufficiency of the fund to pay the debts is the only case in which the Plaintiff in a creditor’s suit is entitled to his costs as between solicitor and client.

[1835] EngR 899, (1835) 3 My and K 168, (1835) 40 ER 64
Commonlii
England and Wales

Insolvency

Updated: 01 December 2021; Ref: scu.316407

Khan v Mortgage Express: 2000

Secured creditors who had proved in respect of the expected shortfall over the value of their security, were not prevented from realising their security over and above its expected value.

[2000] BPIR 473
England and Wales
Cited by:
Cited – Webb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 30 November 2021; Ref: scu.396470

Calor Gas v Piercy: 1994

[1994] BCC 69
England and Wales
Cited by:
Applied – Clarke v Coutts and Co CA 17-Jun-2002
The respondent bank had obtained a charging order nisi against the applicant’s property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 30 November 2021; Ref: scu.182279

Salliss v Hunt and Others: ChD 10 Feb 2014

The bankrupt appealed from a refusal of his challenge to the remuneration claimed by his trustees in that bankruptcy.
Held: On an an application for annulment of a bankruptcy, there was no need of principle why the court should allow for a debt due to a creditor, where that creditor knew of the bankruptcy but had not proved for it and had made a proper and commercial decision not to do so in the future.

Sir Terence Etherton Ch
[2014] EWHC 229 (Ch), [2014] 2 All ER 1002, [2014] BPIR 754, [2014] 1 WLR 2402, [2014] WLR(D) 56
Bailii, WLRD
Insolvency Act 1986, Insolvency Rules 1986
England and Wales

Insolvency

Updated: 29 November 2021; Ref: scu.521173

Bishop v Golstein: CA 5 Feb 2014

Maurice Kay LJ VP CA, Sullivan, Briggs LJJ
[2014] EWCA Civ 10, [2014] WLR(D) 75, [2014] 2 WLR 1448, [2014] 1 Ch 455, [2014] 3 All ER 397
Bailii
England and Wales
Citing:
See Also – Golstein v Bishop ChD 2-May-2013
. .

Cited by:
See Also – Golstein v Bishop and Another ChD 2-Sep-2016
Appeal against refusal of challenge to approval on an Individual Voluntary Arrangement. . .
See Also – Golstein v Bishop and Another ChD 7-Nov-2016
. .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 November 2021; Ref: scu.521042

Kaye v South Oxfordshire District Council and Another: ChD 6 Dec 2013

‘billing authorities have been in receipt of advice that the arrears of business rates outstanding for the purposes of insolvency are to be treated in the same way as arrears of council tax, and that, in both cases, the debt provable in the insolvency is that due up to the date of the insolvency event, unless the debtor has previously defaulted, in which case it is the debt for the whole of the relevant financial year, that is considered to be due, and to become payable and provable in the insolvency. It is the correctness of that view which falls for decision by this court.’

Hidge QC HHJ
[2013] EWHC 4165 (Ch), [2014] BCC 143, [2014] BPIR 416, [2014] Bus LR 597, [2014] 2 All ER 1019
Bailii

Insolvency, Rating

Updated: 29 November 2021; Ref: scu.520880

The Free Grammar School of John Lyon (The Keepers and Governors of The Possessions, Revenues and Goods of) v Helman: CA 22 Jan 2014

The tenant under the long lease became bankrupt. His receiver served a notice seeking to enfranchise the lease.
Held: The notice had been ineffective.

Arden, Rimer LJJ, Sir David Keene
[2014] EWCA Civ 17, [2014] WLR (D) 20
Bailii, WLRD
Leasehold Reform Act 1967 1(1), Land Registration Act 2002 306
England and Wales

Landlord and Tenant, Insolvency

Updated: 28 November 2021; Ref: scu.520120

Keene, In re: CA 1922

The bankrupt, against whom a receiving order had been made, had carried on business in the manufacture and sale in England, France and America of proprietary articles made according to secret formulas invented by him and his brother with whom he was in partnership. At his public examination he was required to disclose these formulas in writing to his trustee. The bankrupt and his brother had each of them agreed not to disclose the secret. Upon the dissolution of the partnership the bankrupt retained the assets and goodwill of the business in England and America, while his brother continued to carry it on in France. The formulas had never been committed to writing. The bankrupt refused to disclose them on the ground that they existed only in his brain as the result of his skill and capacity, and that to disclose them would be a breach of this agreement with his brother.
Held: The formulas were part of the Goodwill and assets of the business and he was bound to communicate them to his trustee.

91 LJ Ch 484, [1922] 2 Ch 475, 127 LT 831, 35 TLR 663, 66 Sol Jo 503, [1922] B and CR 103
England and Wales
Cited by:
Cited – In Re Smith Kline and French Laboratories Ltd HL 9-Feb-1989
The plaintiffs had applied for a product licence for a patented drug. To support its application, it supplied the authority with confidential information which the authority now sought to make use of the confidential information when considering . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Intellectual Property

Updated: 28 November 2021; Ref: scu.182805

Swift and Another v Dairywise Farms Limited and others: CA 1 Feb 2001

The company lent money to farmers secured against their milk quotas. They had to petition for a winding up, and the liquidators requested authority to continue the milk loan repayment schemes. The milk quotas had been vested in the farmers, and the liquidators sought directions form the court as to protection of the milk quotas, which it had been decided, was property capable of being held in trust. The milk quotas were protected by means of tenancy agreements, but an attempt was made to forfeit, or surrender, certain tenancy agreements, which would defeat the arrangement protecting the liquidators. The judge made a ‘safe haven’ order to protect the quotas. That order was appealed.
Held: Under the agreements, the company could require the re-transfer of the milk quota to farmers who completed the loan repayments. If the borrower defaulted, the quota could be sold defeating the equity of redemption. Milk quota may be an ‘asset’ for the purposes of capital gains tax; or property for the purposes of the law of trusts. The safe haven order was properly made.

Lord Justice Chadwick, Lady Justice Hale And Sir Martin Nourse
[2001] EWCA Civ 145
Bailii
Insolvency Act 1986 112, Council Regulations (EEC) 856/84 and 857/84, Dairy Produce Quotas Regulations 1997
England and Wales
Citing:
Cited – Harries v Barclays Bank Plc CA 16-Jul-1997
Milk quotas. . .
Cited – Wachauf v Bundesamt Fur Ernahrung und Forstwirtschaft ECJ 13-Jul-1989
ECJ 1. The term ‘holding’ in Article 12(d) of Council Regulation No 857/84 relating to the application of the additional levy on milk covers all the agricultural production units which are the subject of a lease, . .
Cited – Deverges v Sandeman Clark and Co 1-Mar-1902
It is an incident of a mortgage of chattels and choses in action that the mortgagee has a power of sale exercisable if the defendant fails to pay the monies due on the day fixed for payment or where no day is fixed after a proper demand and notice . .

Cited by:
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Agriculture, Equity

Updated: 28 November 2021; Ref: scu.147419

Official Receiver v Meade-King and Another: CA 30 Jan 2001

The appeals raise a point of some general importance in relation to the powers of the official receiver; namely, whether, at a time when the official receiver is pursuing disqualification proceedings against a former director, the court has jurisdiction to make an order, on an application made by the official receiver under section 236 of the Insolvency Act 1986, requiring third parties to disclose documents and provide information to him in circumstances where the sole purpose of the application is to obtain evidence for use in the disqualification proceedings.

Lord Justice Kennedy, And,
Lord Justice Chadwick
[2001] EWCA Civ 1227, [2002] Ch 239, [2001] 4 All ER 588, [2001] 2 BCLC 555, [2002] BCC 11, [2002] 2 WLR 20
Bailii
Insolvency Act 1986 2236, Access to Justice Act 1999 55(1)
England and Wales

Evidence, Litigation Practice, Insolvency

Updated: 28 November 2021; Ref: scu.147415

Brown and Another (Joint Administrators of Oceancrown Ltd) v Stonegale Ltd: SCS 11 Dec 2013

Administrators sought to have set aside transactions made before the companies went into administration.
Held: Rejecting the director’s arguments, the Lord Ordinary said: ‘No one paid anything for 110, 210, 260 Glasgow Road and 64 Roslea Drive. The sellers, namely Oceancrown, Loanwell and Questway, did not receive anything in return for the dispositions under challenge. They gifted the properties to the dispones . . That the bank was prepared to discharge the standard securities over all five properties in return for the monies forwarded to it does not create a consideration given in return for the subsequent dispositions to Stonegale. No party gave the sellers anything in return for the conveyances under challenge. Any value received was the value paid in respect of number 278. That is what was transferred to McClure Naismith. In my view nothing else alters that basic fact. All that happened was that Strathcroft, on the direction of Mr Pelosi senior, paid the bank monies which were designed to, and did persuade the bank to discharge the standard securities over the five properties, all in order to facilitate the subsequent gratuitous sales. Neither that payment, nor any consequential reduction in indebtedness, was in consideration for the subsequent transactions. It was a mechanism for allowing the inter-company transfers which it was hoped would achieve the retention of the ‘profit’ on 278 within the group (and regarding Roslea Drive, Mr Pelosi junior) – and free of the bank’s securities.’ . . And ‘The dispositions under challenge were gratuitous alienations. Were it otherwise the bank would have received in excess of andpound;4m, and the overall indebtedness would have been reduced by that amount. The price obtained for 278 was used to allow the other Glasgow Road properties to be transferred without consideration to another company which, nominally at least, was owned and controlled by Mr Pelosi junior, and, in the case of 64 Roslea Drive, to him personally.’

Lord Ordinary Lord Malcom
[2013] ScotCS CSOH – 189
Bailii
Insolvency Act 1986 242
Cited by:
Appeal from – Brown and Another v Stonegale Ltd and Another SC 22-Jun-2016
The insolvent companies administrators sought reduction of alienations by the companies before entering into administration. It was said that their banker lenders had been misled as to the values of secured properties, agreeing to their release . .

Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 27 November 2021; Ref: scu.519235

Sace Elektrik Ticaret Ve Sanayi As v Turkey: ECHR 22 Oct 2013

Article 6
Civil proceedings
Article 6-1
Access to court
Mandatory 10% fine for unsuccessful challenge to forced sale at public auction: violation
Facts – Section 134(2) of the Enforcement and Bankruptcy Act (Law no. 2004) provided for the imposition of a fine amounting to 10% of the value of the successful bid when a debtor made an unsuccessful attempt to obtain the annulment of a public auction.
The applicant company was fined the equivalent of EUR 140,000 after unsuccessfully applying for a court order annulling the enforced auction of its land. Although the domestic courts found in the course of the proceedings that the successful bid had not reached the statutory minimum, as it failed to include the costs and expenses of the sale, they ultimately decided not to set aside the auction after the claim for costs and expenses was waived.
In its application to the European Court, the applicant company complained that the heavy fine it had been ordered to pay constituted a breach of its right of access to a court.
Law – Article 6 ss 1: Although the imposition of a fine in order to prevent a build-up of cases before the domestic courts and to ensure the administration of justice was not, as such, incompatible with the right of access to a court, the amount of the fine was a material factor in determining whether or not the right was effective.
Even where, as here, the applicant had had access to all stages of the proceedings the imposition of a considerable financial burden after the conclusion of the proceedings could act as a restriction on the right to a court and would only be compatible with Article 6 ss 1 if it pursued a legitimate aim and was proportionate. The fine imposed pursuant to section 134 of Law no. 2004 pursued the legitimate aims of ensuring the proper administration of justice and protecting the rights of others. However, it could not be considered proportionate. The proceedings initiated by the applicant company had not been frivolous as they had revealed a shortcoming in the auction proceedings, even if it had later been remedied. Importantly, the financial burden imposed on the applicant company was particularly significant (EUR 140,000) and the imposition of a fine had been mandatory without any discretion being left to the domestic courts. In these circumstances, the restriction on the applicant company’s right of access to a court could not be considered proportionate to the legitimate aims pursued.
Conclusion: violation (unanimously).
Article 41: Finding of a violation sufficient just satisfaction in respect of any non-pecuniary damage; claim in respect of pecuniary damage dismissed.

20577/05 – Legal Summary, [2013] ECHR 1169
Bailii
European Convention on Human Rights

Human Rights, Insolvency

Updated: 26 November 2021; Ref: scu.518431

In re Banque des Marchands de Moscou (Koupetschesky) (No 2): CA 1954

A Russian bank operated in Russia. It had no branch in England, but did have an account, in credit, with a bank in London. On December 15, 1917 the bank was nationalized by a decree of the soviet government. On December 16th 1917, two documents were signed, purporting to be orders from the Russian bank to the one in London directing it to pay to the order of O, a russian, andpound;10,000 in the one case and andpound;2000 in the other. The Russian bank was dissolved under a Russian degree in or about January 1918, and any liability of the banker to O was extinguished in Russian law. On May 30 1932 after the dissolution of the russian bank a winding up order in respect of it was made in England under the Companies act 1929 section 338. On September 21, 1932, O, being then domiciled in France, lodged a proof in the winding up in respect of an alleged that the andpound;12,000 being the aggregate of the two sums of andpound;10,000 and andpound;2000. No application for leave to serve a writ out of the jurisdiction for the purpose of recovering either of the two sums was made. O died and assets having come into the hands of the liquidator and the liquidator having rejected the proof on November 12 1952, O’s widow and administratrix applied to the court by summons dated December 3 1952, to reverse the liquidator’s decision.
Held: The debts of andpound;10,000 and andpound;2,000 were locally situate in Russia where the russian bank had resided, and even if the debts could have been recovered in England or by action instituted in england, that fact would not have made them locally situate in England ; and accordingly, the debts remained subject to the nationalisation and other degrees of the Soviet government, and the proof was rightly rejected.
A chose in action must be regarded as situated in a country where it is enforceable. A possibility of serving process out of the jurisdiction under Order 11 does not have the effect of altering the local situation of a chose in action so as to bring it within the jurisdiction.

Romer LJ
[1954] 2 All ER 746, [1954] 1 WLR 1108, 98 Sol Jo 557
England and Wales
Cited by:
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Banking, Insolvency, International

Updated: 25 November 2021; Ref: scu.183831

Jervis v Pillar Denton Ltd (Game Station) and Others: ChD 1 Jul 2013

Application for directions by the administrators of various companies in the Game Group of Companies, including Game Stores Group Limited, concerning the treatment of rent, service charge and insurance payments due under the terms of five leases.

Lavender QC DHCJ
[2013] EWHC 2171 (Ch)
Bailii
Insolvency Act 1986
England and Wales

Insolvency, Landlord and Tenant

Updated: 21 November 2021; Ref: scu.516547

Pricewaterhousecoopers v Saad Investments Company Ltd: PC 10 Nov 2014

(Bermuda) The Board was asked as to the interpretation of Bermudan statutes, and whether the the respondents’ auditors had standing to challenge the winding up order in answer to an appliation by the liquidators.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2014] UKPC 35, [2014] WLR(D) 475
Bailii, WLRD, Bailii Summary
England and Wales
Cited by:
See Also – Singularis Holdings Ltd v Pricewaterhousecoopers PC 10-Nov-2014
(Bermuda) Liquidators of two companies sought information from the companies’ former auditors, and in particular their working papers. . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 November 2021; Ref: scu.538670

Christian Van Buggenhout And Ilse Van De Mierop (Liquidators Of Grontimmo Sa) v Banque Internationale a Luxembourg Sa: ECJ 19 Sep 2013

ECJ Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Article 24(1) – Honouring an obligation ‘for the benefit of a debtor that is subject to insolvency proceedings’ – Payment made to a creditor of that debtor

C-251/12, [2013] EUECJ C-251/12
Bailii

European, Insolvency

Updated: 20 November 2021; Ref: scu.515356

Times Newspapers Ltd v McNamara: ComC 13 Aug 2013

The paper applied for disclosure of the court’s file in the respondent’s insolvency application. They were investigating so called ‘insolvency tourism’ where an person sought more favourable treatment by seeking bankruptcy protection in a different jurisdiction.

Registrar Baister
[2013] EWHC B12 (Comm)
Bailii
Insolvency Rules 7.31A(6)

Insolvency

Updated: 20 November 2021; Ref: scu.515243

Ralph Schmid (Acting As Liquidator of The Assets of Aletta Zimmermann) v Lilly Hertel: ECJ 10 Sep 2013

ECJ Opinion – Judicial co-operation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Jurisdiction of the court of the Member State in which the centre of the debtor’s main interests is situated – Action in the context of insolvency to set a transaction aside – Extra-territorial element – Defendant residing in a third country

Sharpston AG
C-328/12, [2013] EUECJ C-328/12
Bailii
Regulation (EC) No 1346/2000
Cited by:
Opinion – Ralph Schmid (Acting As Liquidator of The Assets of Aletta Zimmermann) v Lilly Hertel ECJ 16-Jan-2014
ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Action to set a transaction aside by virtue of the debtor’s insolvency – . .

Lists of cited by and citing cases may be incomplete.

European, Insolvency

Updated: 20 November 2021; Ref: scu.515169

Re International Tin Council: ChD 1987

An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J said: ‘The statutory trusts extend to [foreign] assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme.’
The court said that it was to ask the question, ‘Could Parliament reasonably have intended that the International Tin Council should be subject to the winding-up process of the UK insolvency legislation?’
Millet J said of the nature of corporate insolvency: ‘Although a winding up in the country of incorporation will normally be given extra-territorial effect, a winding up elsewhere has only local operation. In the case of a foreign company, therefore, the fact that other countries, in accordance with their own rules of private international law, may not recognise our winding up order or the title of a liquidator appointed by our courts, necessarily imposes practical limitations on the consequences of the order. But in theory the effect of the order is world-wide. The statutory trusts which it brings into operation are imposed on all the company’s assets wherever situate, within and beyond the jurisdiction. Where the company is simultaneously being wound up in the country of its incorporation, the English court will naturally seek to avoid unnecessary conflict, and so far as possible to ensure that the English winding up is conducted as ancillary to the principal liquidation. In a proper case, it may authorise the liquidator to refrain from seeking to recover assets situate beyond the jurisdiction, thereby protecting him from any complaint that he has been derelict in his duty. But the statutory trusts extend to such assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme.’

Millet J
[1987] Ch 419, [1987] 2 WLR 1229, [1987] 1 All ER 890
England and Wales
Citing:
See Also – Maclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
Appeal from – Re International Tin Council CA 1989
Creditors sought to treat the International Tin Council as an ‘association’ for the purposes of a provision under the Companies Act 1985 allowing for unregistered companies to be wound up.
Held: The decision in Re a Company was binding. The . .
Cited – Hackney v Side By Side (Kids) Ltd QBD 14-Jul-2003
The defendant sought a stay of a warrant for possession. It had submitted to an order for possession by consent in return for a promise of alternative accomodation. They sought a stay under section 89, saying that the claimant had not complied with . .
Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Jurisdiction

Updated: 19 November 2021; Ref: scu.185746

Regina v Daniel: CACD 22 Mar 2002

The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction predated the Human Rights Act, and was correct at the time. The Carass ruling applied also to the instant section, but since the issue related to interpretation of a statute, and new interpretations of statutes were not retrospective.

Lord Justice Auld, Mr Justice Newman and Mr Justice Roderick Evans
Times 08-Apr-2002, [2002] EWCA Crim 959, [2003] 1 Cr App R 99
Bailii
Insolvency Act 1986 352, Human Rights Act 1998 3(1)
England and Wales
Citing:
Distinguished – Regina v Clive Louden Carass CACD 19-Dec-2001
When a defendant was accused of an offence under the section, and wished to raise a defence under sub-section 4, the duty of proof placed on him by the sub-section amounted to a duty to bring sufficient evidence to raise the defence, and the section . .
Applied – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Jayasena v The Queen PC 1-Dec-2006
J appealed from his conviction of murder. He admitted the act but said that it was in self defence. He said that the Judge had misdirected the jury as to the burden of evidence on the issue of self defence.
Held: Lord Devlin said: ‘Their . .
Cited – Ong Ah Chuan v The Public Prosecutor PC 1980
(Singapore) It was asked whether the mandatory death sentence for trafficking in more than 15 grammes of heroin was unconstitutional. The appellant submitted that the mandatory nature of the sentence rendered it arbitrary, since it debarred the . .

Cited by:
Cited – Barnfather v London Borough of Islington Education Authority, Secretary of State for Education and Skills QBD 7-Mar-2003
The appellant was convicted of the crime of being a parent whose child had failed to attend school regularly. She challenged saying that the offence required no guilty act on her part, but was one of strict liability, and contrary to her human . .
Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Human Rights, Crime

Updated: 19 November 2021; Ref: scu.168526

In re Cutts (a bankrupt); Ex parte Bognor Mutual Building Society: CA 1956

Decisions are often made not for a single reason but for a number.
The phrase ‘with a view of’ a fraudulent preference was given to one creditor over others, it required it to be established what the person’s dominant intention was.
Lord Evershed MR said: ‘If a debtor, knowing himself to be insolvent and knowing also that bankruptcy is imminent, deliberately elects to pay his oldest friend or his closest relative and to leave his other creditors unpaid or with little chance of being paid, it would appear to me to be irrelevant that he made the selection because of the love he bore for his friend or relative or because of his hopes for general but unspecified favours from them in the future…For if a debtor deliberately selects for payment A in preference to all his other creditors, it cannot, to my mind, matter, in the absence of other relevant circumstances, whether A is the debtor’s oldest friend, closest relative or best client.’

Lord Evershed MR, Jenkins and Hodson LJJ
[1956] 2 All ER 537, [1956] 1 WLR 728
Bankruptcy Act 1914 44(1)
England and Wales
Cited by:
Cited – MacDonald (Inspector of Taxes) v Dextra Accessories Ltd and Others ChD 16-Apr-2003
The inspector sought to disallow charging to current tax period payments made by the employer to an employee benefit trust.
Held: The payments were not made and held by the trustees ‘with a view to becoming relevant emoluments’ within the . .
Cited – MacDonald (HM Inspector of Taxes) v Dextra Accessories Ltd and others CA 28-Jan-2004
The company had set up a trust for the benefit of its employees. The Inspector sought to tax the payments made into the trust as ’emoluments’
Held: The appeal was allowed. The payments were ‘potential emoluments’ which were held by the . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 16 November 2021; Ref: scu.181851

Re Probe Data Systems Ltd (No.3): CA 1992

An appeal from a director disqualification is to be under the Insolvency Rules.

[1992] BCC 110
Company Directors Disqualification Act 1986 6
England and Wales
Cited by:
Cited – Secretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .

Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 16 November 2021; Ref: scu.225440