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 fromBailey 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 fromBailey 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:
CitedWebb 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:
AppliedClarke 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 AlsoGolstein v Bishop ChD 2-May-2013
. .

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

Jetivia Sa and Another v Bilta (UK) Ltd and Others: SC 22 Apr 2015

The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the pleaded facts, Mr Chopra and Mr Nazir were the directing organ of Bilta under its constitution. They constituted the board. Mr Chopra was also the sole shareholder. As between Bilta and Jetivia it was common ground on the pleadings that they were the ‘directing mind and will’ of Bilta for all purposes, and certainly in relation to those of its functions which are relevant in these proceedings.
Held: The defendant company and director failed in their appeals, both in relation to the illegality defence and in relation to section 213. The plea of ex turpi causa non oritur actio was not available to the directors of a company in a defence to an action against them by the company for acts involvig breaches of their duties as directors.
Lord Mance said: ‘ it is certainly unjust and absurd to suggest that the answer to a claim for breach of a director’s (or any employee’s) duty could lie in attributing to the company the very misconduct by which the director or employee has damaged it. A company has its own separate legal personality and interests. Duties are owed to it by those officers who constitute its directing mind and will, similarly to the way in which they are owed by other more ordinary employees or agents. All the shareholders of a solvent company acting unanimously may in certain circumstances (which need not here be considered, since it is not suggested that they may apply) be able to authorise what might otherwise be misconduct towards the company. But even the shareholders of a company which is insolvent or facing insolvency cannot do this to the prejudice of its creditors, and the company’s officers owe a particular duty to safeguard the interest of such creditors. There is no basis for regarding the various statutory remedies available to a liquidator against defaulting officers as making this duty or its enforcement redundant.’

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKSC 23, [2015] WLR(D) 182, UKSC 2013/0206, [2015] 2 Lloyd’s Rep 61, [2015] 1 BCLC 443, [2015] 2 All ER (Comm) 281, [2015] BVC 20, [2015] 2 WLR 1168, [2015] BCC 343, [2015] 2 All ER 1083
Bailii, Bailii Summary, WLRD, SC Summary, SC
England and Wales
Citing:
Appeal fromJetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
CitedBowman v Secular Society Limited HL 1917
The plantiff argued that the the objects of the Secular Society Ltd, which had been registered under the Companies Acts, were unlawful.
Held: The House referred to ‘the last persons to go to the stake in this country pro salute animae’ in 1612 . .
At first Instance (1)Bilta (UK) Ltd (In Liquidation) v Nazir and Others ChD 17-May-2010
The sixth defendant resisted a claim against it saying that matters between them were governed by a framework agreement which provided for matters to be resolved by arbitration. The claimant resisted, denying the arbitration agreement and saying . .
At first Instance (2)Bilta (Uk) Ltd v Nazir and Others ChD 24-Nov-2010
The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. . .
Appeal fromBilta (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 . .
CitedAbrath v North Eastern Railway Co HL 15-Mar-1886
The plaintiff had brought an action against the company of malicious prosecution. It was rejected by the jury and again on appeal.
Held: The appeal failed. In an action for damages for the tort of malicious prosecution one of the elements of . .
CitedThe Citizens Life Assurance Company Limited v Brown PC 6-May-1904
(New South Wales) A malicious libel was alleged. The life assurance company was vicariously liable in respect of a libel contained in a circular sent out by a person who was employed by the company under a written agreement as its ‘superintendent of . .
CitedWest Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .
CitedTinsley v Milligan CA 1992
The court considered the defence of illegal user to a claim to have established an easement by prescription: ‘These authorities seem to me to establish that when applying the ‘ex turpi causa’ maxim in a case in which a defence of illegality has been . .
CitedLennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
CitedEl Ajou v Dollar Land Holdings Plc and Another ChD 3-Jan-1993
A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedEl Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
CitedMeridian Global Funds Management Asia Ltd v The Securities Commission Co PC 26-Jun-1995
(New Zealand) Lord Hofmann said: ‘There is in fact no such thing as the company as such, no ‘ding an sich’, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the . .
Not to be followedMoore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .
CitedHounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
CitedLes Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
CitedAbrath v North Eastern Railway Company CA 22-Jun-1883
A claim was brought against the company for malicious prosecution. The jury acquitted it. And the plaintiff appealed.
Held: The judge’s direction had been correct.
Bowen LJ said: ‘Wherever a person asserts affirmatively as part of his . .
CitedJC Houghton and Co v Northard, Lowe and Wills HL 1927
The court was asked whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular . .
CitedRegina v ICR Haulage Ltd KBD 1944
A company can be guilty of conspiracy, in this case to defraud. Both the managing director and, through him, the haulage company were convicted of conspiracy to defraud. His acts ‘were the acts of the company and the fraud of that person was the . .
CitedMoore v I Bresler Ltd KBD 1944
The company had been required to make a return for revenue purposes (purchase tax) and the statute made it an offence to make a false return with intent to deceive. The company was charged with such, but responded that the action was of employees . . .
CitedDirector of Public Prosecutions v Kent and Sussex Contractors Ltd 1945
The court considered the liability of a company under provisions being, ‘with intent to deceive, made use . . of a document which was false in a material particular’
Held: The General Manager was capable of acting or speaking as the company; . .
CitedBelmont Finance Corporation Ltd v Williams Furniture Ltd CA 1979
The company directors operated an elaborate scheme to extract value from Belmont by causing it to buy the shares of a company called Maximum at a considerable overvalue. This was a breach of the fiduciary duties of the directors. They sought to . .
CitedRe Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .
CitedLloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
CitedTesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
CitedAshmore, Benson, Pease and Co v A V Dawson Ltd CA 1973
By acquiescing in the overloading of the hauliers’ lorries, the consignors’ assistant transport manager and his assistant made the haulage contract unenforceable at the instance of the consignors, who were unable to recover when a lorry toppled over . .
CitedAttorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
CitedRoyal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
CitedLancashire County Council v Municipal Mutual Insurance Ltd CA 3-Apr-1996
The defendant agreed to indemnify the insured ‘in respect of all sums which the insured shall become legally liable to pay as compensation arising out of’ various matters including wrongful arrest, malicious prosecution and false imprisonment. The . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedSafeway Stores Ltd and Others v Twigger and Others CA 21-Dec-2010
The court was asked whether, when a company had been fined for anti-competitive practices, the company could then recover the penalties from the directors and senior employees involved.
Held: The undertaking was not entitled to recover the . .
CitedAberdeen Railway Co v Blaikie Brothers HL 1854
The plaintiff needed a large quantity of iron chairs (rail sockets) and contracted for their supply over an 18-month period with Blaikie Bros a partnership. Thomas Blaikie was the managing partner of Blaikie Bros and a director and the chairman of . .
CitedSalomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
CitedBowman v Secular Society Limited HL 1917
The plantiff argued that the the objects of the Secular Society Ltd, which had been registered under the Companies Acts, were unlawful.
Held: The House referred to ‘the last persons to go to the stake in this country pro salute animae’ in 1612 . .
CitedBrink’s Mat Ltd v Noye CA 1991
The proceeds of the theft of gold bullion from a warehouse owned by the plaintiffs were laundered through the bank account of a company called Scadlynn Ltd with Barclays Bank. The directors and sole shareholders of Scadlynn were signatories of the . .
CitedDirector of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
CitedHall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
CitedSouth Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
CitedMarks and Spencer Plc v Palmer CA 9-Oct-2001
The claimant had tripped against a weather strip which protruded by less than 1 cm above the surface of doorway of the staff exit from one of the defendant’s stores. It was a permanent fixture and, as such, was part of the construction of the floor. . .
CitedMarks and Spencer plc v Palmer CA 9-Oct-2001
A shopper carrying some heavy bags tripped and fell over a weather strip, which was proud of the floor at an exit door to the extent of some 8 to 9.5 mm high. The recorder had said that, once he was satisfied that the claimant came into contact with . .
CitedGray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
CitedRalph 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 – . .

Cited by:
CitedBurnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
CitedRoyal Mail Group Ltd v Jhuti SC 27-Nov-2019
‘if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Torts – Other, Limitation

Leading Case

Updated: 29 November 2021; Ref: scu.545696

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

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:
CitedHarries v Barclays Bank Plc CA 16-Jul-1997
Milk quotas. . .
CitedWachauf 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, . .
CitedDeverges 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:
CitedUltraframe (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

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:
CitedIn 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

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

Jack and Another (London Scottish Finance Ltd) v Craig and Others: ChD 17 Dec 2013

Application by the joint administrators of LSF for directions arising out of loan agreements made or acquired by LSF before the administration began, under which secured loans were made to consumers but which were unenforceable because they contravened provisions of the Consumer Credit Act 1974.
Held: The phrase ‘realisation of the security’ in section 106, is to be interpreted conventionally to achieve the policy objective (section 113) that the security provided under the regulated agreement could not be enforced so as to benefit the creditor to any greater extent than would be the case if the security were not provided. In a secured loan to which section 106(d) applied, the provisions did not catch all sums paid by the debtor in discharge of the loan.

Sir Terence Etherton Ch
[2013] EWHC 4047 (Ch), [2013] WLR(D) 498, [2014] Bus LR 424, [2013] CTLC 231
Bailii, WLRD
Insolvency Act 1986, Consumer Credit Act 1974 106(d)

Insolvency, Consumer, Banking

Updated: 27 November 2021; Ref: scu.519223

Re Storm Funding Ltd: ChD 18 Dec 2013

‘The administrators of 14 companies in the Lehman Brothers group apply for directions as to the potential liabilities of those companies to make payments to or for the benefit of the Lehman Brothers Pension Scheme (the scheme) established principally for the benefit of persons employed by Lehman Brothers Limited (LBL) but seconded to work for other group companies. ‘

David Richards J
[2013] EWHC 4019 (Ch), [2014] Bus LR 454, [2014] Pens LR 73, [2013] WLR(D) 502
Bailii, WLRD
Insolvency Act 1986

Insolvency

Updated: 27 November 2021; Ref: scu.519226

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 fromBrown 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

Smith-Evans v Smailes: ChD 29 Jul 2013

Appeal against a bankruptcy order made against the claimant. She said that an individual voluntary arrangement which had, at least ostensibly, been in place since the middle of 2008, down to the events leading to the bankruptcy petition, was a nullity. Therefore, the bankruptcy order should not have been made, as the ground for the bankruptcy order was breach of the provisions of the IVA.

Purle QC HHJ
[2013] EWHC 3199 (Ch), [2014] BPIR 306, [2013] WLR(D) 423, [2014] 1 WLR 1548
Bailii, WLRD

Insolvency

Updated: 23 November 2021; Ref: scu.517344

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:
CitedWight, 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 AlsoSingularis 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:
OpinionRalph 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

In re Southern Pacific Personal Loans Ltd: ChD 8 Aug 2013

This application raises issues concerning the relationship between the Data Protection Act 1998 and the winding-up of insolvent companies and the duties of liquidators.
Held: The Joint Liquidators of a company did not take on the duties of a data controller as regards data held by the company before entering into liquidation

David Richards J
[2013] EWHC 2485 (Ch), [2013] WLR(D) 336
Bailii, WLRD
Insolvency Act 1986, Data Protection Act 1998 1

Insolvency, Information

Updated: 19 November 2021; Ref: scu.514981

Heis and Others v Attestor Value Master Fund Lp and Another: ChD 16 Aug 2013

‘This application raises issues concerning the relationship between the rules governing the distribution of client money to clients as beneficiaries of the trust and the rules governing the proof and payment of debts due to clients as creditors. Specifically, the issues concern, first, the extent to which a distribution of client money reduces the amount for which a client may prove or the amount which a client may be paid as a creditor and, secondly, whether a claim in respect of a shortfall in the client money trust is a provable debt and, if so, the principles governing its amount. ‘

David Richards J
[2013] EWHC 2556 (Ch), [2013] WLR(D) 339
Bailii, WLRD

Insolvency

Updated: 19 November 2021; Ref: scu.514980

Webster and Another v Mackay: ChD 19 Jul 2013

The claimants appealed from a refusal to annul their bankruptcies, saying that they should not ever have been made, because the petition debt was not a liquidated debt. The claimants said that the debt had been repudiated.
Held: The appeal failed. A present right to future payment was not transformed into a claim for damages upon acceptance of a repudiatory breach.

Purle QC
[2013] EWHC 2571 (Ch)
Bailii
Insolvency Act 1986 282(1)(a)

Insolvency

Updated: 19 November 2021; Ref: scu.514975

In re a Company (No 0012209 of 1991): ChD 1992

It is an abuse of the process of the court to make a statutory demand or present a winding-up petition based on a claim to which there is a triable defence. Where a statutory demand is made but disputed on reasonable grounds, the creditor may find himself liable to indemnity costs on its dismissal.
Hoffmann J said: ‘It does seem to me that a tendency has developed, possibly since the decision in Cornhill Insurance plc v Improvement Services Ltd [1986] BCLC 26, [1986] 1 WLR 114, to present petitions against solvent companies as a way of putting pressure upon them to make payments of money which is bona fide disputed rather than to invoke the procedures which the rules provide for summary judgment. I do not for a moment wish to detract from anything which was said in the Cornhill Insurance case, which indeed followed earlier authority, to the effect that a refusal to pay an indisputable debt is evidence from which the inference may be drawn that the debtor is unable to pay. It was, however, a somewhat unusual case in which it was quite clear that the company in question had no grounds at all for its refusal. Equally it seems to me that if the court comes to the conclusion that a solvent company is not putting forward any defence in good faith and is merely seeking to take for itself credit which it is not allowed under the contract, then the court would not be inclined to re-strain presentation of the petition. But, if, as in this case, it appears that the defence has a prospect of success and the company is solvent, then I think that the court should give the company the benefit of the doubt and not do anything which would encourage the use of the Companies Court as an alternative to the RSC Ord 14 procedure.’

Hoffmann J
[1992] 2 All ER 797, [1992] 1 WLR 351, [1992] BCLC 865
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedBNY Corporate Trustee Services Ltd and Others v Neuberger SC 9-May-2013
Potential Insolvency effect under guarantee
The various parties had entered into complex and substantial financial arrangements incorporating guarantees. The guarantees were conditional upon the guaranteed party being solvent. The parties disputed whether a party which would otherwise be . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Company, Insolvency

Updated: 19 November 2021; Ref: scu.278997

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 AlsoMaclaine 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 fromRe 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 . .
CitedHackney 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 . .
CitedMcGrath 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 . .
CitedMcGrath 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.
CitedBilta (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:
DistinguishedRegina 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 . .
AppliedRegina 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 . .
CitedJayasena 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 . .
CitedOng 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:
CitedBarnfather 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 . .
CitedRegina 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

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:
CitedSecretary 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

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:
CitedMacDonald (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 . .
CitedMacDonald (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

Andelkovic v Serbia: ECHR 9 Apr 2013

ECHR Article 6-1
Fair hearing
Arbitrary domestic decision amounting to denial of justice: violation
Facts – In 2004 the applicant instituted civil proceedings against his employer, who was in financial difficulty, for outstanding holiday pay. The applicant’s claim was granted at first instance in line with the applicable labour law and collective agreements, but the judgment was reversed on appeal on the grounds that accepting the applicant’s claim would have resulted in the applicant being treated more favourably than the employer’s other employees, none of whom had received outstanding holiday pay.
Law – Article 6-1: The Court reiterated that the question of the interpretation of domestic law lay primarily with the national courts and it would intervene only when those courts in a particular case applied the law manifestly erroneously or so as to reach an arbitrary conclusion. In the applicant’s case the domestic law had clearly provided for instances in which employees were entitled to holiday pay. Having established the relevant facts, the first-instance court had found that the applicant was entitled to the payments. However, the appellate court had overturned that judgment without a single reference to the labour law or the facts as established at first instance. Nor had it explained what the law was or how it should be applied in the applicant’s case. In fact, the reasoning of the appellate court had no legal foundation and was based on an abstract assertion falling outside any reasonable judicial discretion. In conclusion, the arbitrary ruling of the appellate court in the applicant’s case had amounted to a denial of justice and violated his right to a fair hearing.
Conclusion: violation (unanimously).
(See also De Moor v. Belgium, no. 16997/90, 23 June 1994; and Barac and Others v. Montenegro, no. 47974/06, 13 December 2011)

1401/08 – Legal Summary, [2013] ECHR 478
Bailii
European Convention on Human Rights 6-1

Human Rights, Employment, Insolvency

Updated: 12 November 2021; Ref: scu.510774

Clarke v Cognita Schools Ltd (T/A Hydesville Tower School): ChD 1 Apr 2015

The claimants sought to have set aside statutory demands served to enforce judgmens, they said under a discrepancy. The order refusing their application should they said, have notified them of their right to appeal.
Held: None of the applicable rules expressly required otification that an appeal was available.

Newey J
[2015] EWHC 932 (Ch), [2015] WLR 3776, [2015] 2 All ER (Comm) 663, [2015] BPIR 444, [2015] WLR(D) 164, [2015] 1 WLR 3776, [2016] 1 All ER 477
Bailii, WLRD
Insolvency Act 1986 264, Insolvency Rules 1986, Civil Procedure Rules 3.3(5)
England and Wales

Insolvency, Civil Procedure Rules

Updated: 12 November 2021; Ref: scu.545433

Henderson v Foxworth Investments Limited and Another: SC 2 Jul 2014

It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for adequate consideration’. One element was that the same debt said to have been taken on by the purchaser, was in fact proved against the company on its subsequent insolvency. The criticisms levelled at the Lord Ordinary in relation to this matter missed their target: ‘His treatment of this chapter of evidence was not unbalanced, and did not indicate any failure to understand it or to take it into account. More generally, he gave careful consideration to the arguments and evidence adduced on behalf of the liquidator, and explained why he nevertheless concluded that the liquidator’s case should be rejected.’
Lord Reed summarised the approach to a judgment of the Court of Session: ‘It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.’
and ‘It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.’

Lord Kerr, Lord Sumption, Lord Reed, Lord Carnwath, Lord Toulson
[2014] 1 WLR 2600, [2014] UKSC 41, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, UKSC 2013/0083
Bailii Summary, Bailii, WLRD, SC, SC Summary, SC, SC Summary
Insolvency Act 1986 242
Scotland
Citing:
Outer House OpinionHenderson 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 HouseHenderson 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. . .
CitedHenderson 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. . .
CitedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
CitedMcGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
CitedJohn Stewart Hamilton and others v Allied Domecq Plc OHCS 1-Aug-2003
. .
CitedThomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
CitedHousen v Nikolaisen 28-Mar-2002
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge . .
CitedRe B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .

Cited by:
CitedCarlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
CitedPaymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
CitedPerry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
CitedWalsh v The Council of The Borough of Kirklees QBD 5-Mar-2019
No demonstrable error of assessment – no appeal
The claimant cyclist appealed from refusal of damages after being thrown from her bike on hitting a pothole in the road. The court had found it unproven that the pothole was dangerous.
Held: The evidence had been difficult. The court noted . .

Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Leading Case

Updated: 12 November 2021; Ref: scu.533880

In re Charge Card Services Ltd: ChD 1987

The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and claims to damages for future breaches of contracts existing at that date, were capable of proof and, being capable of proof, could be set off under the section provided that they arose from mutual credits or mutual dealings. The only requirement was that they must in fact have resulted in quantified money claims by the time the claim to set off was made.’ The conventional contractual position in a typical credit card use, involves three (or where there is an acquirer in fact four) separate contracts. The contract of supply remains a contract of sale for a price, even where the buyer chooses to satisfy that price by means of a card. Payment by card is not conditional upon anything that may or may not happen in the chain of separate contracts between the buyer, the card-issuing company and the store, since ‘the general understanding of the public’ is ‘that when a customer signs the voucher he has discharged his obligations to the supplier and that he pays for the goods or services he has obtained when he pays the card-issuing company’.

Millet J
[1987] Ch 150
England and Wales
Citing:
CitedJones v Mossop 1844
Mr Reed held a bond for pounds 500 given by Mr Jones, who had also guaranteed some loans to Mr Reed by third parties. Mr Reed died insolvent and Mr Jones was called to pay pounds 377 to the lenders under the guarantees. When Mr Reed’s assignee Mr . .
CitedIn re Moseley-Green Coal and Coke Co Ltd, Ex parte Barrett 1865
Mr Barrett owed the company money on his partly-paid shares for which calls were made after it went into insolvent liquidation. He had also guaranteed the company’s liability for the purchase price of a coal mine, for which the vendor held security . .
CitedIn re Asphaltic Wood Pavement Co Ltd 1885
. .

Cited by:
CitedSecretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
CitedRevenue and Customs v Debenhams Retail Plc CA 18-Jul-2005
The store introduced a system whereby when a customer paid by credit card, the charges made to them for card handling were expressed as a separate amount on the receipt. The store then said that VAT was payable only on the net amount allocated to . .
CitedBanco Santander Sa v Bayfern Ltd and Others ComC 29-Jun-1999
The court was asked whether the risk of fraud on the part of the beneficiary of a confirmed deferred payment letter of credit is to be borne by the issuing bank (and so possibly the applicant for the credit) or by the confirming bank where the . .
CitedOffice of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
CitedTam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd PC 1996
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Consumer

Leading Case

Updated: 11 November 2021; Ref: scu.196878

Fleming v Secretary of State for Trade and Industry: IHCS 1997

The applicant had held 65% of the shares of the company by which he was employed and was its managing director. On its insolvency, he sought payment of his arrears of wages from the defendant. The industrial tribunal concluded that he was not an employee: ‘Given that the applicant was the majority shareholder and had in fact personally guaranteed obligations of the company to the two main suppliers, I came to the conclusion that the applicant was not an employee within the meaning of the relevant legislation. There was no suggestion that the applicant was under the control of anyone within the company. He may have had another director with whom he discussed matters but at the end of the day in the event of conflict it was clear because of the nature of the applicant’s shareholding that he could overrule the other director. The argument that is advanced by the applicant in his IT1 that he was under the control of other creditors did not seem to me to be an argument that helped his case at all. The key issue is the relationship between the applicant and the limited company – not the relationship between the applicant’s limited company and outside bodies. The situation clearly would have been different had the outside bodies been shareholders in the company, but that was not the case. I came to the conclusion that the applicant was operating more like a partnership running with the protection and limitations of a company and, that being so, I could not hold that the applicant was in the employ of the company and must therefore dismiss the application.’
The Employment Appeal Tribunal had dismissed his appeal. The Secretary of State relied on three submissions – (1) that the question of whether the applicant was employed under a contract of service was a question of fact for the industrial tribunal which could only be challenged on the basis that it was perverse; (2) that that was not so on the facts of the instant case; and (3) that in any event the decision in Buchan and Ivey had established what was tantamount to a rule of law that a majority shareholder could not be treated as an employee for the purposes of the employment legislation.
Held: The Court accepted the first two submissions but not the third. As regards the two submissions which Lord Coulsfield accepted he said: ‘We agree that it is well-established that the question whether or not a person is an employee is a question of fact to be decided by the industrial tribunal and that neither the Employment Appeal Tribunal nor this court is entitled to interfere unless the industrial tribunal has in some way misdirected itself or arrived at a conclusion which cannot reasonably be supported. In the present case, it seems to us that, taking all the factors together, there was ample material to entitle the industrial tribunal to reach the conclusion that the appellant was not an employee for the purposes of the employment protection legislation. There were, as counsel for the respondent recognised, factors on which the appellant could rely on as pointing towards an employment relationship, such as the fact that the appellant worked alongside other employees of the company, with the same hours of work, and had no other employment. On the other hand, the fact that he was able to decide to draw no salary during the last month of the company’s existence, the fact that he personally guaranteed its obligations and the fact that he held a substantial majority shareholding are all factors which point in the opposite direction, as is the fact that there was no written record of his terms of employment. The fact that the salary which the appellant received was paid through the PAYE system is, in our view, neutral. In all the circumstances, therefore, we have no doubt that there was ample material on which the industrial tribunal was entitled to reach the conclusion that the appellant was not an employee.
In reaching the above conclusion, we have treated the fact that the appellant held a majority shareholding in the company as a relevant factor. We do not see how it could, in common sense, be doubted that the fact that a person is a shareholder is a relevant factor. The significance of that factor will depend on the circumstances, and the weight to be given to it may vary with the size of the shareholding. It is true that, as the appellant pointed out, a change in the size of a shareholding might, on that view, lead to a change in the view taken of the status of a particular person. The decision as to whether a person is or is not an employee must, however, be taken on all the relevant factors at the material time. The shareholding position at the material time must, in our view, be a relevant factor. It will, however, usually only be one of a number of such factors, and it is not impossible that regard might be had to the way in which the person in question comes to be a shareholder, or to be a majority shareholder. As in any such decision, all the circumstances have to be considered.’
As regards the Secretary of State’s argument based on the effect of Buchan and Ivey Lord Coulsfield said: ‘As we have indicated, the argument which we have heard in the present case is limited and we did not have the assistance of submissions from a legal representative on behalf of the appellant. In these circumstances we would not wish to go too far in expressing any opinion. Nevertheless, we can say that in view of the long-standing rule to which we have referred, that the question whether or not a person is an employee is a question of fact, we would be reluctant to see the introduction of any purported rule of law into this area of decision. We note in particular that in Buchan some reliance is placed on the proposition that a controlling shareholder can prevent the company from dismissing him. We are uncertain how that factor would apply in a case like the present, where it was the liquidator who dismissed the appellant. We did not hear argument on that matter, however, and we need express no view on it. It can easily be seen, as we have said, that the fact that the claimant is a majority shareholder is always a relevant factor. Normally it will be an important factor and there may well be cases in which it is decisive. We are not, however, convinced that it would be proper to lay down any rule of law to the effect that the fact that a person is a majority shareholder necessarily and in all circumstances implies that that person cannot be regarded as an employee, for the purposes of the employment protection legislation.’

Lord Coulsfield
[1997] IRLR 682
Scotland
Cited by:
CitedNesbitt v Secretary of State for Trade and Industry EAT 10-Aug-2007
EAT Contract of Employment – definition of employee
Insolvency
The Appellants were a husband and wife who entered into contracts of employment with a company which they managed and which they between . .

Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Leading Case

Updated: 11 November 2021; Ref: scu.511082

Regina v Kansal (2): HL 29 Nov 2001

The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective effect of Human Rights decisions in appeal cases may have been incorrect, but will be followed. Decisions in respect of original hearings and public law cases remain retrospective in effect. Parliament had intended that a citizen whose Convention rights had been violated before the 1998 Act and was then a defendant in a trial after that date should be able to rely on his Convention rights at that trial. There were strong reasons of policy, the need for certainty in the law and finality in litigation, why a conviction which was valid and lawful at the time should not be set aside because of a change in the substantive law. It was wrong for one House of Lords Judicial Committee to reconstitute a seven judge hearing simply to anticipate reversing an earlier decision.

Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Steyn, Lord Hope of Craighead and Lord Hutton
Times 04-Dec-2001, Gazette 17-Jan-2002, [2001] UKHL 62, [2001] 3 WLR 1562, [2002] 2 AC 69, [2002] 1 All ER 257, [2002] HRLR 9, [2002] BPIR 370, [2002] 1 Cr App R 36, [2002] UKHRR 169
House of Lords, Bailii
Human Rights Act 1988, European Convention on Human Rights, Insolvency Act 1986 433
England and Wales
Citing:
AppliedRegina 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 . .
Appeal fromRegina v Kansal, on a Reference From the Criminal Cases Review Commission (2) CACD 24-May-2001
Once a case had been referred to the Court of Appeal by the Criminal Cases Review Commission, the court had to make a declaration, even if the case was very old. The effect of the 1998 Act on statute law was not retrospective, but where it affected . .
CitedRegina v Campbell CACD 25-Oct-1996
The defendant appealed against his conviction for murder. At trial he had pleaded provocation, but not that he suffered abnormality of mind. Subsequent evidence of his state of mind led to this referral. The court now received fresh evidence to . .
See AlsoRegina v Kansal CACD 24-Jun-1992
K had been convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was . .
CitedRegina v Preddy; Regina v Slade; Regina v Dhillon (Conjoined Appeals) HL 10-Jul-1996
The appellants were said to have made false mortgage applications. They appealed convictions for dishonestly obtaining property by deception.
Held: A chose in action created by an electronic bank transfer was not property which was capable of . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedRegina 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 . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedMitchell v WT Grant Company 13-May-1974
(Supreme Court of the USA) Stewart J said: ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the . .
CitedPlanned Parenthood of Southeastern Pennsylvania v Casey 29-Jun-1992
(Supreme Court of the USA) The Court discussed the grounds upon which it would depart from precedent and why it would not overrule its equally controversial decision on abortion in Roe v. Wade.
Held: ‘no judicial system could do society’s work . .
CitedRegina v Benjafield, Leal, Rezvi and Milford CACD 21-Dec-2000
Lord Woolf MR said that where the original proceedings are brought by a public authority, an appeal is part of those proceedings to which section 22(4) applies: ‘In our judgment, where the original proceedings are brought by, or at the instigation . .
CitedLewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
CitedParochial Church Council of Aston Cantlow and Wilmcote With Billesby, Warwickshire and Another ChD 7-Feb-2000
A lay rector could be liable for the physical upkeep of the chancel of the church by virtue of the Act, and such liability was not removed by the new Human Rights Act. Such liability could exist whether or not he had notice of the liability when . .
CitedRegina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
CitedRegina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
CitedFitzleet Estates Ltd v Cherry HL 9-Nov-1977
Income tax – Schedule D, Cases III and VI – Payments of interest and ground rent incurred when property was being developed – Whether capitalised or paid out of profits or gains brought into charge to tax – Income Tax Act 1952 (15 and 16 Geo. 6 and . .
CitedWallbank and Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote With Billesley, Warwickshire CA 17-May-2001
The defendant owned land subject to an inclosure award of 1743, in exchange for other land which had made the owner a lay rector. The land was subject to the burden of a duty to maintain the chancel of the parish church. The defendants had been . .
CitedPreiss v General Dental Council PC 17-Jul-2001
(Professional Conduct Committee of the GDC) The procedures of the General Dental Council were in breach of the right to a fair trial, insofar as the same person might both carry out the preliminary stages of an investigation, and later be involved . .
CitedRegina v Mitchell CACD 1977
The court considered the effect of changes in the law after a conviction on applications for leave to appeal out of time.
Held: Lane LJ said: ‘This is an application for an extension of time in which to appeal against conviction. It should be . .
CitedMinto v Police 1987
When considering a police officer’s assessment that a breach of the peace is imminent, the question of immediacy is in part a question of degree and is highly relevant to the reasonableness of the action taken.
A refusal or failure to . .
CitedMontgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .

Cited by:
CitedThe Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .
AppliedRegina v Rezvi HL 24-Jan-2002
Having been convicted of theft, a confiscation order had been made against which the appellant appealed. The Court of Appeal certified a question of whether confiscation provisions under the 1988 Act were in breach of the defendant’s human rights. . .
CitedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
At House of LordsKansal v The United Kingdom ECHR 27-Apr-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (Convention proceedings) – . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedHooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
CitedO v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
CitedJuncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
CitedDoherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
CitedA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedGC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
CitedJude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
Cited(Un-named) (DLA) SSCS 16-Oct-2002
Disability Living Allowance . .
CitedR(CS) 6/03 SSCS 5-Nov-2002
Maintenance assessment – whether ‘parent with care’ includes step-parent
Human rights – application of Human Rights Act 1998 where Secretary of State’s decision before October 2000 and tribunal hearing afterwards . .
CitedRe Jordan QBNI 6-Jan-2003
. .
CitedWright, Re Application for Judical Review QBNI 7-Mar-2003
The applicant is the father of a man called Billy Wright who was murdered on 27 December 1997 while an inmate of Her Majesty’s Prison, the Maze, Lisburn, County Antrim. By this application Mr Wright seeks judicial review of the decision of the Chief . .
CitedJordan, Re Application for Judicial Review CANI 12-Dec-2003
Appeal from a decision dismissing an application by Hugh Jordan for judicial review of the ‘continuing decision’ of the Director of Public Prosecutions for Northern Ireland refusing to give reasons other than in the most general terms for his . .
CitedMagee, Re Application for Statutory Review QBNI 16-Sep-2004
Judicial review – Criminal Justice Act 1988 – Claim for compensation for miscarriage of justice – claim is alternative under ex parte scheme – whether applicant victim of miscarriage – whether decision of Secretary of State flawed. . .
CitedBeck and Others, Re Petitions To The Nobile Officium HCJ 29-Jan-2010
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.167006

Horton v Henry: CA 7 Oct 2016

No obligation on bankrupt to draw on pension fund

The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension policies, were he to exercise his contractual rights under those policies to draw down a lump sum or other payments.
Held: The trustee’s appeal failed. The bankrupt could not be obliged to take a lump sum from his pension funds so that it could to be treated as an income to supprot an Income Payment Order. Section 310 did not allow a reading which characterises a pension holder’s contractual rights under their pension to elect, after reaching a certain age, to draw down, or ‘crystallise’ that pension, in the form of a lump sum or income payments. Such an entitlement was after acquired property, and not available to the trustee.
The judge in Raithatha had failed properly to allow for the depth of changes introduced by the 1999 Act.

McFarlane, Gloster LJJ, Sir Stanley Burnton
[2016] EWCA Civ 989, [2016] WLR(D) 506
Bailii, WLRD
Insolvency Act 1986 310, Welfare Reform and Pensions Act 1999 11
England and Wales
Citing:
CitedRaithatha v Williamson ChD 4-Apr-2012
A bankrupt’s present entitlement to compel payment of pension benefits fell to be included in the assessment of his income within the meaning of section 310(7) of the Insolvency Act. . .
CitedHorton v Henry ChD 17-Dec-2014
The trustee in bankruptcy sought to oblige the bankrupt to make a capital draw on pension fund assets in order to support an Income Payment Order.
Held: The judge dismissed the application for an IPO. The court had no power under section 310 . .
CitedIn Re Landau (A Bankrupt) ChD 1-Dec-1996
At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .
CitedDennison v Krasner, Lesser, Lawrence CA 6-Apr-2000
A retirement annuity or personal pension was part of a bankrupt’s estate before the recent Act, and vested immediately in the trustee on the bankruptcy. As such there was no need to make application to the court under s310 for an income payment . .
CitedBlight and Others v Brewster ChD 9-Feb-2012
A judgment creditor, applied for an order requiring Mr Brewster, his judgment debtor, to elect to draw down a lump sum from his pension in order to enable the judgment creditor to obtain a third party debt order against the pension trustees.
CitedIn the Estate of Borger Deceased 1912
Supreme Court Victoria – Will – Construction – Legacy, lapse of – Death of beneficiary ‘before he shall have become entitled,’ meaning of.
A testator devised his real estate to trustees upon trust for his brother J until his youngest surviving . .
CitedBarclays Bank Plc v Holmes and others ChD 21-Nov-2000
. .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 November 2021; Ref: scu.570113

Williams v Glover and Another: ChD 4 Jun 2013

The company’s liquidator had refused to assign to its former directors a claim for a reduction in corporation tax which they were funding.
Held: Such a claim did not constitute property within section 436, and was not a chose capable of assignment. All that could be assigned would be the right to appeal. Since the former directors were no longer officers of the company they could not act in its name to pursue the appeal.

Pelling QC HHJ
[2013] EWHC 1447 (Ch), [2014] 1 WLR 166, [2013] BPIR 576, [2014] 1 BCLC 474, [2013] WLR(D) 223, [2014] 2 All ER 448
Bailii, WLRD
Insolvency Act 1986 436
England and Wales
Citing:
CitedTorkington v Magee 11-Jul-1902
Chose in Action defined
The effect of the 1873 Act was essentially procedural and it did not render choses in action that had not previously been assignable in equity capable of assignment.
Channell J defined a debt or other legal chose in action: ”Chose in Action’ . .
CitedHeath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Leading Case

Updated: 11 November 2021; Ref: scu.510171

Butters and Others v BBC Worldwide Ltd and Others: ChD 20 Aug 2009

In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one.
Held: The new licence arrangement impliedly involved a surrender of the old. The contractual provisions in the joint venture agreement taken together with termination provisions in a licence of IP rights were void. Their effect was to deprive creditors on a subsequent insolvency of access to the assets and was therefore against public policy in the light of the insolvency laws.

Peter Smith J
[2009] EWHC 1954 (Ch), [2009] BPIR 1315
Bailii
England and Wales
Citing:
CitedGraves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
CitedBell v Lever Brothers Ltd HL 15-Dec-1931
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying andpound;30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could . .
CitedPerpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd and Another ChD 28-Jul-2009
The parties had entered into complicated financial arrangements effectively providing credit insurance. On the insolvency of Lehman brothers, a claim was made.
Held: The contractual provisions were effective as a matter of English law and, in . .
CitedGreat Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
CitedAssociated Japanese Bank (International) Ltd v Credit du Nord SA 1988
A contract of guarantee was made, but based upon a term of fundamental importance which was mistaken as to the existence of certain machines.
Held: The court must first look to the nature of the purported agreement. Steyn J said: ‘Logically, . .
CitedUnited Dominions Corporation (Jamaica) Ltd v Shoucair PC 1969
(Jamaica) A moneylending law required, for the enforceability of a loan bearing interest at more than ten per cent, a written memorandum containing all the terms of the loan with the borrower’s signature. A bank lent money at nine per cent secured . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 11 November 2021; Ref: scu.374034

Lewis and Another v Metropolitan Property Realizations Ltd: ChD 21 Nov 2008

Nothing in the 2003 changes to the 1986 Act operated so that a trustee in bankruptcy who sold an interest of the bankrupt for a deferred payment had not realised the interest. Accordingly, on the bankrupt’s release, that interest had been assigned out of the bankrupt’s estate and did not revert to him.

Proudman J
[2008] EWHC 2760 (Ch), Times 09-Dec-2008
Bailii
Insolvency Act 1986 283A(3)(a), Enterprise Act 2002 8261
England and Wales

Insolvency

Updated: 11 November 2021; Ref: scu.278233

In re Horsley and Weight Ltd: CA 1892

The liquidator sought to set aside a pension policy acquired by the company for the benefit of a retiring director. The question was whether the decision to acquire the pension had been ratified by the shareholders.
Held: There had been no misfeasance by the directors.
A company is bound in a matter which is intra vires the company by the unanimous agreement of its members, even where that agreement is given informally and without any meeting.
Templeman LJ said: ‘There could have been gross negligence, amounting to misfeasance. If the company could not afford to pay out andpound;10,000 and was doubtfully solvent so that the expenditure threatened the continued existence of the company, the directors ought to have known the facts and ought at any rate to have postponed the grant of the pension until the financial position of the company was assured.’
Cumming-Bruce LJ referred to a suspicion that at the time of the decision the company was not in a position to pay the money to the respondent. But that evidence ‘fell far short of proof that the directors should at the time have appreciated that the payment was likely to cause loss to the creditors’.
Buckley LJ emphasised that the good faith of the directors was not questioned and there was no suggestion that they had failed to apply their minds honestly to the question whether the decision was a fair and proper thing for the company to do in the light of the company’s financial state as known to them at the time.

Templeman, Cumming-Bruce LJ
[1982] Ch 442, [1982] 3 WLR 431, [1982] 3 All ER 1045
England and Wales

Company, Insolvency

Leading Case

Updated: 11 November 2021; Ref: scu.570504

Secretary of State for Business, Enterprise and Regulatory Reform v Amway (UK) Ltd: CA 29 Jan 2009

The Secretary challenged the refusal to order the winding up of the company after the court accepted undertakings as to the future business model and conduct of the company.
Held: Where the insolvency proceedings were on the basis that the trading methods of a company were ‘inherently objectionable’ unders section 124A, the court had power to accept appropriate undertakings from the company as to its future business models and practices and to reject the Secretary of State’s petition.

Lord Justice Rix, Lord Justice Toulson and Lord Justice Rimer
[2009] EWCA Civ 32, Times 18-Mar-2009, [2009] Bus LR D121
Bailii
Insolvency Acy 1986 124A
England and Wales

Company, Insolvency

Updated: 10 November 2021; Ref: scu.280242

Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd: ChD 6 Mar 2018

IVA is a special form of contract

Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on its cessation. The liquidators challenged the clause as a penalty.
Held: The additional sums falling due to Prudential upon the termination of the CVA were payable as an administration expense or administration expenses for the period during which the (original) administrators were in possession of the premises for the purposes of the administration. Although the arrangement was a contract, not all laws applicable to contracs applied to it. The law of penaties applied to protect a party suffering after some oppressive contract creation circumstance. An IVA was a creature of statute, and its terms set by the company’s representatives, and no element of negotiation arose and therefore there was no opportunity to argue repression of for a penalty.

Christopher Pymont QC
[2018] EWHC 402 (Ch), [2018] WLR(D) 143
Bailii, WLRD
Insolvency Act 1986 112
England and Wales
Citing:
CitedJohnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
CitedCommissioners of Inland Revenue v Adam and Partners Ltd ChD 2000
. .
CitedLloyds Bank Plc v Ellicott CA 8-Feb-2002
A voluntary arrangement has contractual effect. . .
CitedCooden Engineering Co Ltd v Stanford CA 1953
A payment to be made on a wrongful termination of a lease by a tenant, will attract consideration of the law of penalties, for notwithstanding the requirement for acceptance of it, the amount to be paid is, ‘plainly a sum to be paid in consequence . .
MentionedCampbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
CitedTanner v Everitt ChD 2004
Mann J discussed the status of an IVA in contract law: ‘The arrangement is therefore contractually based, with the statute providing the consent or deemed consent of the otherwise dissenting parties’ . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedThompson v Hudson HL 1869
An agreement is not penalty if it simply reserves to a creditor the right to have his debt paid in full in the event that his debtor does not pay on a due date a smaller sum that he has agreed to accept in satisfaction
Lord Hatherley said: ‘I . .
CitedEveritt v Budhram and Another ChD 20-May-2009
The trustee in bankruptcy appealed against rejection of his claim for the sale of the home in which the bankrupts each held a one half share. The bankruptcies arose from non payment of council tax. The principle sums had been repaid, and the . .
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
CitedPhilips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
CitedSea Voyager Maritime Inc and Others v Bielecki trading as Hughes Hooker and Co ChD 23-Oct-1998
The creditor alleged a right to recover against the estate citing an unfair prejudice from the IVA.
Held: He had been unfairly prejudiced. The IVA precluded him, like all the other unsecured creditors, from suing the debtor for the full amount . .
CitedWelsby v Brelec Installations Limited ChD 2001
The CVA provided for the payment by the company of contributions to the supervisors for distribution to creditors. The company went on into a creditors’ voluntary liquidation.
Held: The sums held by the supervisors in trust for the CVA . .
CitedIn re Lundy Granite Co; Ex parte Heavan CA 1871
The landlord of Lundy Island, which was let to a third party, distrained upon goods of the company which had been left upon the tenant’s property. The distraint was for rent which had fallen due more than a year after the winding up order. The . .
CitedIn re Smith and Hartogs 1895
A landlord agreed to a reduction of the rent payable for the time being, with the balance in effect being added to the rent payable later in the term. The tenant failed to pay the reduced rent.
Held: The landlord was entitled to distrain for . .
CitedIn re ABC Coupler and Engineering Co Ltd (No 3) ChD 1970
The liquidator when appointed closed down the business which had been conducted on the premises, had the company’s plant and machinery valued and thought about what he should do.
Held: The rent did not become a liquidation expense until some . .
CitedIn re Downer Enterprises Ltd ChD 1974
The company was the assignee of a lease. The rent appears to have been payable in advance on the usual quarter days. The company went into liquidation in November 1971. At some time before April 1972 the liquidator instructed agents to market the . .
CitedBelmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
CitedPillar Denton Ltd and Others v Jervis and Others CA 24-Feb-2014
The corporate tenant became insolvent, but the administrators continued in occupation. The parties now disputed whether the rent (payable in advance) was a provable debt or an administration expense.The court was asked whether a company in . .
CitedOakrock Ltd v Travelodge Hotels Ltd and Others TCC 16-Jan-2015
Application by the first defendant for summary judgment against the claimant for the whole of the claim on the ground that the claim has no real prospect of success and that there is no other compelling reason why the case should be disposed of at . .
CitedNarandas-Girdhar and Another v Bradstock CA 16-Feb-2016
Appeal from rejection of claim to have set aside Individual Voluntary Arrangement . .
CitedIn re Silkstone and Dodworth Coal and Iron Co ChD 1881
A mining lease provided that the rent was payable half-yearly in arrears. Rent became payable after presentation of the winding-up petition and a winding-up order was made after the rent became payable. The lease was subject to a proviso for . .
CitedShackell v Chorlton 1895
. .
CitedRe HH Realisations Ltd ChD 1975
The liquidator of a company ceased to be liable to pay the rent under the company’s lease in full from the time it gave notice to the landlord that it was seeking authority to disclaim the lease, even though it remained in occupation for nearly two . .
CitedPeekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .
CitedTrident Turboprop (Dublin) Ltd v First Flight Couriers Ltd Comc 17-Jul-2008
Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 10 November 2021; Ref: scu.605847

Child Maintenance and Enforcement Commission v Beesley and Another: ChD 11 Mar 2010

The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said that such arrears were not subject to the arrangement, and the arrangement was unfair to it.
Held: Child support debts are excluded as a bankruptcy debt, but not for an individual voluntary arrangement, being included within the definition in section 382(4). The statute appeared to include a deliberate choice not to exclude such debts. The Commission might avoid the consequences of it being concluded that such debts were subject to the IVA by attending and voting. It had chosen not to do so.
However, the scheme failed to recognise the particular character of the debt, and the scheme was therefore unfair and was set aside.

Pelling QC J
[2010] EWHC 485 (Ch), [2010] 2 FLR 164, [2010] BPIR 552, [2010] Fam Law 579
Bailii
Child Support Act 1991, Insolvency Act 1986 263(3) 382(4)
England and Wales
Citing:
CitedDepartment of Social Security v Butler CA 1995
The effect of the 1991 Act is that the court has no jurisdiction to grant an injunction to prevent an absent parent from disposing of his assets. A detailed consideration of the 1991 Act shows that it provides a detailed and comprehensive scheme and . .
Citedin Re Bradley-Hole (A Bankrupt) ChD 1995
There was a conflict between the creditors who were party to the IVA and a subsequent trustee in bankruptcy; and the bankruptcy was petitioned by a new creditor who was unaffected by the IVA.
Held: The IVA had created a trust of the bankrupt’s . .
CitedKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
AppliedRe A Debtor (No.488 IO of 1996), JP v A Debtor ChD 1999
The debtor had been ordered to pay his wife a sum by way of ancillary relief in matrimonial proceedings. He then proposed an IVA, which was approved at a creditors meeting. W had notice but did not attend. She along with all other creditors was to . .

Lists of cited by and citing cases may be incomplete.

Child Support, Insolvency

Updated: 10 November 2021; Ref: scu.402599

Couldery v Bartrum: 1881

coulder_bartrum1881

A secured creditor was not entitled to amend after a composition had been taken and completed. Sir George Jessel MR said: ‘According to English common law a creditor might accept anything in satisfaction of his debt except a less amount of money. He might take a horse, or a canary, or tomtit if he chose, and that was accord and satisfaction; but, by a most extraordinary peculiarity of the English common law he could not take 19 shillings and sixpence in the pound; that was nudum pactum.’

Sir George Jessel MR, Lindley LJ, Baggallay LJ
(1881) 19 Ch D 394
Cited by:
CitedCollier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .

Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Leading Case

Updated: 10 November 2021; Ref: scu.262874

Bishopsgate Investment Management Ltd (In Provisional Liquidation) v Maxwell and Another: CA 13 May 1992

A company liquidator applied for an order under sections 235 and 236 of the Insolvency Act 1986 that a director should disclose information to that liquidator. The Director objected that to do so would infringe his privilege against self-incrimination. In separate proceedings, heard for these purposes together, two other companies sought remedies of an account and tracing against the same individual, who had also been a director of those companies. In the course of the proceedings, the plaintiff companies sought and obtained Mareva injunctions (freezing orders) against the defendant’s former director, and included in those orders were requirements that the director should answer certain interrogatories. The director again objected on the basis that answers to questions might incriminate him.
Held: The orders were upheld. The privilege against self-incrimination is firmly established judge-made law dating from the sixteenth century abolition of the Star Chamber. The privilege against self incrimination is entrenched, and can be removed by clear words in a statute only. The plaintiff remained entitled to refuse to answer the interrogatories on the basis that the answers might incriminate him.

Gazette 13-May-1992, [1993] Ch 1, [1992] BCLC 475
Insolvency Act 1986 236 133
England and Wales
Cited by:
CitedHolder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .
CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Insolvency, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.78423

McGuinness v Norwich and Peterborough Building Society: CA 9 Nov 2011

The appellant had guaranteed his brother’s loan from the respondent, and the guarantee having been called in and unpaid, he had been made bankrupt. He now appealed saying that the guarantee debt, even though of a fixed amount could not form the basis of a statutory demand without action being taken on the debt first.
Held: The appeal failed. The possible inclusion of a damages liability as the basis of a good petitioning creditor’s debt cannot be based on the extended definition of ‘bankruptcy debt’ in s.382(1) and (4). It has to be found in the practice and decisions of the court as to what constitutes a debt in a liquidated sum for the purposes of a creditor’s petition. A debt for a liquidated sum must be a pre-ascertained liability under the agreement which gives rise to it. That was not the case here, and there was nothing in the wording of the deed to displace the standard result.

Ward, Moses, Patten LJJ
[2011] EWCA Civ 1286, [2012] BPIR 145, [2011] NPC 117
Bailii
Insolvency Act 1986 267 322(a) 382
England and Wales
Citing:
CitedHope v Premierpace (Europe) Ltd 1999
A claim for an account and payment was not one for debt which could form the subject of a statutory demand. . .
CitedLep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Appeal fromMcGuinness v Norwich and Peterborough Building Society ChD 23-Nov-2010
The claimant appealed against his bankruptcy saying that it had followed as statutory demand based upon his alleged default under a guarantee of his brothers mortgage borrowings. He said that such a claim was not a liquidated sum within the 1986 . .
CitedSocony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL 14-Jun-1990
The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
CitedUtterson v Vernon And Others 5-Feb-1790
There had been an agreement to lend to the bankrupt some stock which she undertook to replace. The act of bankruptcy and the declaration of her bankruptcy took place before the stock was replaced. The parties disputed whether the agreement created a . .
CitedEx Parte Job Broadhurst In The Matter Of Job Broadhurst 7-Dec-1852
A covenant given by the father of two existing partners to an incoming partner to pay any shortfall in the debts due to the firm below a stated sum and to bear the debts of the existing partners in excess of a stated sum was treated not as a . .
CitedOwen v Routh And Ogle CCP 27-Jan-1854
The plaintiff alleged the breach of an undertaking to deliver share certificates on a particular day. The defendants said that bankruptcy discharged them from the obligation. The bankruptcy applied to the defendants’ ‘debts and sums of money due or . .
CitedIn Re Dummelow CA 1872
The parties disputed whether a particular creditor was entitled to vote at the first meeting. The section excluded a right to vote in the case of creditors in respect of ‘any unliquidated or contingent debt, or any debt the value of which is not . .
CitedEx parte Ward CA 1882
The court was asked whether a creditor might petition for bankruptcy on a liability as a broker who had failed to settle sums due on purchasing shares on the London Stock Exchange. He was declared a defaulter under the Exchange rules as to . .
CitedRe Miller CA 1901
A prospective partner in the firm paid andpound;2,000 to a broker on terms that he should have the option of demanding its repayment if he did not become a partner by a date. The firm was hammered before that date and having given notice to . .
CitedRe a Debtor; ex parte Berkshire Finance Co Ltd QBD 2-Jan-1962
The court was asked to consider whether a judgment debt in respect of sums due under a hire-purchase agreement was a good petitioning creditor’s debt. The judgment sum included the balance of all the remaining hire charges which became payable on . .
MentionedCampbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
CitedTruex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 10 November 2021; Ref: scu.448322

McCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration): ChD 22 Apr 2010

The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair dismissal, breach of contract and otherwise. The claims were issued anyway, and the administrators argued that they were a nullity, save for the claims for protective awards. The claimants argued that the claims had a real prospect of success, and to deny them would be inequitable.
Held: The claimants sought to have applied the wrong test. The claims were monetary claims. There has to be shown some exceptional reason to allow the actions. The claimants said that the fact that the claims would otherwise not be provable in the liquidation made them such, but this was rejected. The claims were contingent debts or debts. They did not require a judgment to be provable in the liquidation.

Norris J
[2010] EWHC 826 (Ch)
Bailii, Times
Insolvency Act 1986 Sch b1 p43(6), Employment Rights (Northern Ireland) Order 1996, Insolvency Rules 12.3(1)
England and Wales
Citing:
CitedAES Barry Ltd v Txu Europe Energy Trading ChD 15-Jul-2004
Patten J considered whether to grant consent to a monetary action against the company now in administration, and said: ‘it will be in exceptional cases that the Court gives a creditor whose claim is simply a monetary one, a right by the taking of . .
Appeal FromJones v Kernott ChD 10-Jul-2009
The couple were unmarried but had bought a property in joint names. Ms Jones had contributed the overwhelming share of the purchase price, and had paid all outgoings after Mr Kernott left several years ago. The County court judge had awarded J 90%, . .
CitedAIB Capital Markets Plc and Another v Atlantic Computer Systems Plc and others; in re Atlantic Computers CA 25-Jul-1990
The court was asked how the administrators should deal with third parties seeking to exercise existing proprietary rights (including security rights) against the company in administration, and gave guidance. Nicholls LJ noted that in some cases . .
CitedMcCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration) ChD 22-Apr-2010
The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair . .
CitedGlenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
CitedKahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL 20-Feb-2002
A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .
CitedSecretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
CitedKrasner v McMath; in Re Huddersfield Fine Worsteds Limited CA 12-Aug-2005
The administrators had adopted the contracts of certain employees, who now claimed that the protective awards should have priority to the expenses of the administration.
Held: The payments did fall within paragraph 99(5) and do not have . .
CitedCasson 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 . .
CitedHaine 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 . .
CitedSteele, 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 . .
CitedRe Armstrong Whitworth 1947
Four workmen who had suffered pre-liquidation accidents but had made post-liquidation claims had, at the date of the winding up, ‘contingent claims’. . .
CitedIn re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .

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

Lists of cited by and citing cases may be incomplete.

Insolvency, Employment

Updated: 10 November 2021; Ref: scu.408582

Harms Offshore AHT Taurus Gmbh and Co KG v Bloom and Others: CA 26 Jun 2009

The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The statutory prohibition against creditors bringing proceedings against a company being wound up by the court is not extra-territorial. The protection of the assets of a company in administration is not to be regarded by the Court as differing in substance from the protection of the assets of a company in compulsory liquidation. In both cases, the assets of the company are dealt with by an officer appointed by the Court in accordance with statutory duties.
The conduct of the Appellants and the circumstances of the attachments brought it into the exceptional category in which the grant of injunctive relief is justified, notwithstanding comity and notwithstanding the outstanding application of the Administrators in New York.

Lord Justice Ward, Lord Justice Stanley Burnton and Sir John Chadwick
[2009] EWCA Civ 632, Times 10-Jul-2009, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349
Bailii
Insolvency Act 1986
England and Wales
Citing:
CitedIn Re Oriental Inland Steam Company ex parte Scinde Railway Company CA 1874
The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . .
CitedMitchell v Carter ChD 1997
Section 183 of the 1986 Act, which precludes a creditor who levies execution or attaches a debt after commencement of a winding up, from retaining the benefit of his execution or attachment, does not apply to executions or attachments in foreign . .
CitedRe Vocalion (Foreign) Ltd 1932
The section only applies only to proceedings pending in the UK, and not to proceedings in a foreign Court. The Court has an equitable jurisdiction in personam to restrain a respondent properly served in this country from proceeding with an action . .
CitedSociete Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
CitedPolly Peck International Plc v The Marangos Hotel Company Ltd and Others CA 7-May-1998
Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . .
CitedBarclays Bank v Homan CA 1993
If the conduct of a creditor can be castigated as oppressive or vexatious the Court can and should grant relief in order to protect the performance by administrators of their functions and duties. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insolvency

Leading Case

Updated: 09 November 2021; Ref: scu.347220

Rastelli Davide e C. Snc v Jean-Charles Hidoux: ECJ 15 Dec 2011

rastelliECJ2011

ECJ Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – Extension of insolvency proceedings opened in respect of a company established in one Member State to a company whose registered office is in another Member State because the property of the two companies has been intermixed.

Tizzano P
C-191/10, [2011] EUECJ C-191/10
Bailii
Regulation (EC) No 1346/2000

European, Insolvency

Updated: 09 November 2021; Ref: scu.450095

Irish Reel Productions Ltd v Capitol Films Ltd: ChD 10 Feb 2010

The petitioner’s winding-up petition had been dismissed on the defendant company being put into administration. The petitioner asked for its costs to be paid as an administration expense payable in priority to the administrator’s expenses.
Held: Rule 2.12 must be read purposively. The order could be made, though not with the priority requested. Briggs J said: ‘an administration on the application of the company may be the last stage in a long process whereby the company comes to be subjected to an insolvency process in the interests of its creditors, the earlier stages of which may include the bringing of a winding-up petition, and the prosecution of that petition in the face of dogged resistance by the company itself. In my judgment one of the purposes for which Rule 2.12(1)(e) permits a person who has presented a winding-up petition to appear at the hearing of an administration application is to enable that person to seek an order for the costs of that petition, which will ordinarily be dismissed at the hearing of the administration application, if an administration order is made.’

Briggs J
[2010] EWHC 180 (Ch), Times 28-Apr-2010, [2010] Bus LR 854
Bailii
Insolvency Rules 1986 (SI 1986 No 1925) 2.12(3), Insolvency Act 1986
England and Wales
Citing:
CitedRe Gosscott (Groundworks) Ltd 1988
The court had jurisdiction under section 51 to order that the costs of administration proceedings overtaken by a compulsory liquidation could be ordered to be treated as costs in the winding-up. . .
CitedKahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL 20-Feb-2002
A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .
CitedUnadkat and Co (Accountants) Ltd v Bhardwaj and Another ChD 11-Oct-2006
Section 651 was broad enough to enable the court to order that the costs of having the dissolution of a company declared void be treated as an expense in the winding-up, notwithstanding the decision of the House of Lords in Re Toshoku Finance UK plc . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 09 November 2021; Ref: scu.396747