Somji v Cadbury Schweppes Plc: CA 20 Dec 2000

Where a party’s agreement to an individual voluntary arrangement had been obtained by an advantage offered to that creditor but not disclosed to others, the entire arrangement could be set aside. In this case the offer to purchase a debt after the arrangement was not an ordinary dealing in distressed debt. There was a duty of openness and good faith. The test was whether it would be likely to have made a material difference to the way in which the creditors would have seen the proposal. Cases from before the 1986 legislation could be referred to but with care.

Judges:

Judge, Walker LJJ, Sir Christopher Staughton

Citations:

Gazette 22-Feb-2001, Times 16-Jan-2001, [2000] EWCA Civ 340, [2001] 1 WLR 615, [2001] 1 BCLC 498

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

CitedIn re Trident Fashions plc ChD 5-Feb-2004
Creditors of the company sought relief, saying the voluntary arrengement made had been based upon the omission of material by the insolvency practitioner.
Held: A court could intervene in such a case only where the actions of the practitioner . .
CitedCommissioners of Inland Revenue v The Wimbledon Football Club Limited, Ellis, Earp CA 28-May-2004
The Commissioners appealed against a refusal of their application for a revocation of the defendant’s voluntary arrangement in that it had failed to comply with section 4. They complained that the arrangement was unfair to them. It had been agreed . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 23 May 2022; Ref: scu.135630

Hurst v Bennett and Others In Re A Debtor (No 302 of 1997): CA 16 Feb 2001

A former partner in a firm could not set off sums due to him from the former partnership, against sums expended by remaining partners in acting to protect partnership property, and claimed from him. There was insufficient mutuality to enforce the set off. The one claim was by partners but as trustees, and the other was a claim directly under the partnership.

Citations:

Times 15-Mar-2001, Gazette 26-Apr-2001, [2001] EWCA Civ 182

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Equity, Company, Insolvency

Updated: 23 May 2022; Ref: scu.135567

Dear v Reeves: CA 1 Mar 2001

A right of pre-emption granted over land was property. It had value and was capable of assignment, and was therefore a chose in action. As such it was vested the trustee in bankruptcy on the insolvency of the owner of the right. It may be difficult to value, and might not become exercisable, but it remained property.

Citations:

Times 22-Mar-2001, [2001] EWCA Civ 277

Links:

Bailii

Statutes:

Insolvency Act 1986 436

Jurisdiction:

England and Wales

Land, Insolvency

Updated: 23 May 2022; Ref: scu.135547

Kornhaas v Thomas Dithmar: ECJ 10 Dec 2015

ECJ (Judgment) Reference for a preliminary ruling – Area of freedom, security and justice – Insolvency proceedings – Regulation (EC) No 1346/2000 -Article 4(1) – Determination of the applicable law – Legislation of a Member State laying down the obligation for a managing director of a company to reimburse that company for the payments made after it had become insolvent – Application of that legislation to a company established in another Member State – Articles 49 TFEU and 54 TFEU – Restriction on the freedom of establishment – None

Citations:

ECLI:EU:C:2015:806, [2015] EUECJ C-594/14

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 23 May 2022; Ref: scu.557015

in re Pergamon Press Ltd: CA 1971

The court was asked as to the duties of inspectors appointed under the 1948 Act. Sachs LJ said: ‘The inspectors’ function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking action; it is no part of their function to take a decision as to whether action be taken and a fortiori it is not for them finally to determine such issues as may emerge if some action eventuates.’
Lord Denning MR set out the following statement of principle: ‘The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.’
and ‘They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings . . When they do make their report, the Board are bound to send a copy of it to the company; and the board may, in their discretion, publish it, if they think fit, to the public at large.
Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly . . before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him.’

Judges:

Lord Denning MR

Citations:

[1971] Ch 388, [1970] 3 WLR 792, [1970] 3 All ER 535

Statutes:

Companies Act 1948

Jurisdiction:

England and Wales

Cited by:

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 . .
CitedFinancial Conduct Authority v Macris SC 22-Mar-2017
The claimant had complained that the appellant Authority had made public a penalty imposed on a former employer but implicating him without he being first given an opportunity to make representations. . .
CitedLewin, Regina (on The Application of) v The Financial Reporting Council Ltd and Others Admn 19-Mar-2018
. .
CitedUK Innovative TI Ltd and Another v The Financial Conduct Authority UTTC 25-Apr-2018
FINANCIAL SERVICES – procedure – applicants contending they have third party rights in relation to a Supervisory Notice – whether Tribunal has jurisdiction in relation to the subject matter of the references-no-references struck out – Rule 8 (2) (a) . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 20 May 2022; Ref: scu.622608

n re Rolls Razor Ltd. (No. 2): ChD 1970

Megarry J said: ‘The process under section 268 is needed because of the difficulty in which the liquidator in an insolvent company is necessarily placed. He usually comes as a stranger to the affairs of a company which has sunk to its financial doom. In that process, it may well be that some of those concerned in the management of the company, and others as well, have been guilty of some misconduct or impropriety which is of relevance to the liquidation. Even those who are wholly innocent of any wrongdoing may have motives for concealing what was done. In any case, there are almost certain to be many transactions which are difficult to discover or to understand merely from the books and papers of the company. Accordingly, the legislature has provided this extraordinary process so as to enable the requisite information to be obtained. The examinees are not in any ordinary sense witnesses, and the ordinary standards of procedure do not apply. There is here an extraordinary and secret mode of obtaining information necessary for the proper conduct of the winding up. The process, borrowed from the law of bankruptcy, can only be described as being sui generis.’

Judges:

Megarry J

Citations:

[1970] Ch. 576

Jurisdiction:

England and Wales

Citing:

See AlsoIn Re Rolls Razor Ltd ChD 1968
Buckley J said: ‘The powers conferred by section 268 are powers directed to enabling the court to help a liquidator discover the truth of the circumstances connected with the affairs of the company, information of trading, dealings, and so forth, in . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 May 2022; Ref: scu.622387

National Westminster Bank Plc v Spectrum Plus Ltd and Others; In re Spectrum Plus Ltd (in liquidation): CA 12 Jul 2004

The High Court or the Court of Appeal should not follow a decision of the Privy Council in place of a decision of the House of Lords, unless the circumstances are quite exceptional and the court is satisfied that in practice the result would be a foregone conclusion

Judges:

Lord Phillips of Worth Matravers MR, Jonathan Parker, Jacob LJJ

Citations:

[2004] EWCA Civ 670, [2004] 3 WLR 503, [2004] Ch 337

Links:

Bailii

Statutes:

Insolvency Act 1986 112

Jurisdiction:

England and Wales

Cited by:

CitedWillers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Insolvency

Updated: 20 May 2022; Ref: scu.622344

In Re Rolls Razor Ltd: ChD 1968

Buckley J said: ‘The powers conferred by section 268 are powers directed to enabling the court to help a liquidator discover the truth of the circumstances connected with the affairs of the company, information of trading, dealings, and so forth, in order that the liquidator may be able, as effectively as possible and, I think, with as little expense as possible and with as much expedition as possible, to complete his function as liquidator, to put the affairs of the company in order and to carry out the liquidation in all of its various aspects, including, of course, the getting in of any assets of the company available in the liquidation. It is, therefore, appropriate for the liquidator, when he thinks that he may be under a duty to try to recover something from some officer or employee of a company, or some other person who is, in some way, concerned with the company’s affairs, to be able to discover, with as little expense as possible and with as much ease as possible, the facts surrounding any such possible claim.’

Judges:

Buckley J

Citations:

[1968] 3 All ER 698, [1970] Ch 576

Jurisdiction:

England and Wales

Cited by:

See Alson re Rolls Razor Ltd. (No. 2) ChD 1970
Megarry J said: ‘The process under section 268 is needed because of the difficulty in which the liquidator in an insolvent company is necessarily placed. He usually comes as a stranger to the affairs of a company which has sunk to its financial . .
ApprovedIn Re Esal (Commodities) Ltd CA 1989
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 May 2022; Ref: scu.622386

Re Esal (Commodities) Ltd (No 2): CA 2 Jan 1990

the principal purpose of the powers to compel third parties to provide material to office-holders under sections 235, 236 and 366 is to assist with the beneficial winding up of the company or bankruptcy of the individual in question

Judges:

Dillon LJ

Citations:

[1990] BCC 708

Jurisdiction:

England and Wales

Citing:

See AlsoRe Esal (Commodities) Ltd CA 30-May-1988
The respondents were the liquidators of a company which the appellant bank climbed old substantial monies. The insolvent company had several subsidiaries and sub-subsidiaries, holding further assets. The respondent first sought an order requiring . .
See AlsoIn Re Esal (Commodities) Ltd CA 1989
. .
At ChDRe Esal (Commodities) Ltd (No 2) ChD 1990
The company was wound up massively insolvent. The liquidators obtained orders for the private examination of an officer of the bank, who had undertaken an investigation into the bank’s relationship with the company before it’s liquidation. The bank . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 May 2022; Ref: scu.622384

Re Esal (Commodities) Ltd: CA 30 May 1988

The respondents were the liquidators of a company which the appellant bank climbed old substantial monies. The insolvent company had several subsidiaries and sub-subsidiaries, holding further assets. The respondent first sought an order requiring the production of certain documents to assist with the liquidation. Those orders were discharged after compromise agreements. The respondent then sought yet further disclosures, and the court made an order in very wide terms which would permit disclosure of any documents thought reasonably beneficial to the winding up, and those subsidiary or sub-subsidiary companies might in turn also disclose them if required to do so in other legal proceedings. The appellant now said that the order was too wide.
Held: The appeal failed. The wide power of disclosure was necessary to avoid the court becoming bogged down in the minutiae of constant squabbles over the relevance of particular documents.

Citations:

[1989] BCLC 59, Times 30-May-1988, 1988 PCC 443

Statutes:

Companies Act 1985 561

Jurisdiction:

England and Wales

Cited by:

See AlsoIn Re Esal (Commodities) Ltd CA 1989
. .
See AlsoRe Esal (Commodities) Ltd (No 2) ChD 1990
The company was wound up massively insolvent. The liquidators obtained orders for the private examination of an officer of the bank, who had undertaken an investigation into the bank’s relationship with the company before it’s liquidation. The bank . .
See AlsoRe Esal (Commodities) Ltd (No 2) CA 2-Jan-1990
the principal purpose of the powers to compel third parties to provide material to office-holders under sections 235, 236 and 366 is to assist with the beneficial winding up of the company or bankruptcy of the individual in question . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 20 May 2022; Ref: scu.622389

Re Esal (Commodities) Ltd (No 2): ChD 1990

The company was wound up massively insolvent. The liquidators obtained orders for the private examination of an officer of the bank, who had undertaken an investigation into the bank’s relationship with the company before it’s liquidation. The bank and liquidators agreed to terms upon which information would be provided to the liquidators, a term of which was that documents disclosed by the bank would be used only for the liquidation without the leave of the court. A member of the committee of inspection issued proceedings against the back for fraudulent trading by E in which the banker had participated. He sought permission to use the information disclosed in the liquidation in the action against the bank.
Held: The information could be used. Information obtained under a threat based upon section 268 should be used only for the purposes of the liquidation unless there were exceptional circumstances. Here the subject matter and the claim were closely associated with to the liquidation and the allegations were of a serious nature.

Judges:

Millett J

Citations:

[1990] BCC 125

Statutes:

Companies Act 1984 268

Jurisdiction:

England and Wales

Citing:

See AlsoRe Esal (Commodities) Ltd CA 30-May-1988
The respondents were the liquidators of a company which the appellant bank climbed old substantial monies. The insolvent company had several subsidiaries and sub-subsidiaries, holding further assets. The respondent first sought an order requiring . .
See AlsoIn Re Esal (Commodities) Ltd CA 1989
. .

Cited by:

At ChDRe Esal (Commodities) Ltd (No 2) CA 2-Jan-1990
the principal purpose of the powers to compel third parties to provide material to office-holders under sections 235, 236 and 366 is to assist with the beneficial winding up of the company or bankruptcy of the individual in question . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 May 2022; Ref: scu.622385

In Re Esal (Commodities) Ltd: CA 1989

Citations:

[1989] BCLC 59

Jurisdiction:

England and Wales

Citing:

ApprovedIn Re Rolls Razor Ltd ChD 1968
Buckley J said: ‘The powers conferred by section 268 are powers directed to enabling the court to help a liquidator discover the truth of the circumstances connected with the affairs of the company, information of trading, dealings, and so forth, in . .
See AlsoRe Esal (Commodities) Ltd CA 30-May-1988
The respondents were the liquidators of a company which the appellant bank climbed old substantial monies. The insolvent company had several subsidiaries and sub-subsidiaries, holding further assets. The respondent first sought an order requiring . .

Cited by:

See AlsoRe Esal (Commodities) Ltd (No 2) ChD 1990
The company was wound up massively insolvent. The liquidators obtained orders for the private examination of an officer of the bank, who had undertaken an investigation into the bank’s relationship with the company before it’s liquidation. The bank . .
See AlsoRe Esal (Commodities) Ltd (No 2) CA 2-Jan-1990
the principal purpose of the powers to compel third parties to provide material to office-holders under sections 235, 236 and 366 is to assist with the beneficial winding up of the company or bankruptcy of the individual in question . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 May 2022; Ref: scu.622388

Stocznia Gdanska SA v Latvian Shipping Company and Others: ComC 25 May 2001

When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised them. The reasonableness of pursuing a point was not necessarily relevant. The sub-paragraph was distinct from other allowing issues as to the conduct of the parties. One purpose of the rules was to persuade parties to reduce the number of claims they made to encourage a reduction in the costs of litigation.

Judges:

Thomas J

Citations:

Times 25-May-2001, [2001] EWHC 500 (Comm)

Links:

Bailii

Statutes:

Civil Procedure Rules 44.3(2)

Jurisdiction:

England and Wales

Citing:

See AlsoStocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2) CA 15-Mar-2000
Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction . .
CitedPLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .

Cited by:

Appeal fromLatvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
See AlsoStocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2) CA 15-Mar-2000
Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction . .
Lists of cited by and citing cases may be incomplete.

Costs, Insolvency

Updated: 20 May 2022; Ref: scu.89570

Stocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2): CA 15 Mar 2000

Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction would be likely to achieve a substantial benefit from such an action, and third was that some person responsible for distribution of the company’s assets was somebody over whom a UK court could exercise a jurisdiction.

Citations:

Times 15-Mar-2000, [2000] EWCA Civ 36, [2001] 2 BCLC 116

Links:

Bailii

Statutes:

Insolvency Act 1986 221

Jurisdiction:

England and Wales

Citing:

See AlsoStocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See AlsoStocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .

Cited by:

See AlsoStocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See AlsoStocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .
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 . .
See AlsoLatvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
See AlsoStocznia Gdanska Sa v Latvian Shipping Company and others CA 23-Jul-2002
Application for leave to appeal to the House of Lords refused. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Jurisdiction

Updated: 20 May 2022; Ref: scu.89567

Stein v Blake: CA 13 May 1993

The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision in Farley was wrong and that the separate causes of action survived the bankruptcy and could be assigned, subject to the ‘equity’ of the bankruptcy set-off.

Judges:

Balcombe LJ

Citations:

Times 13-May-1993, [1994] Ch 16

Statutes:

Insolvency Act 1986 323f

Jurisdiction:

England and Wales

Cited by:

Appeal fromStein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
See AlsoStein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
See AlsoStein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
See AlsoStein v Blake ChD 31-Oct-2000
When a Legal Aid certificate was withdrawn, leading to an opposing party suffering abortive costs in continuing the action, it was not a duty of the Legal Services Commission to inform the opposing side. They would have no access to arrangements . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 May 2022; Ref: scu.89539

Hamilton and Another v Naviede and Director of SFO: HL 26 Jul 1994

A Company Court Judge may not fetter the later use of insolvency interviews by a criminal court. The obligation to give the information will not prejudice the fairness of a possible criminal trial, since the accused would still have the protection of section 78 of the Act of 1984.

Judges:

Lord Browne-Wilkinson

Citations:

Independent 26-Jul-1994, Times 26-Jul-1994, [1995] 2 AC 75, [1994] 3 All ER 814, [1995] 1 Cr App R 95, [1994] 3 WLR 656

Statutes:

Insolvency Act 1986 236, Police and Criminal Evidence Act 1984 78

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Criminal Practice

Updated: 20 May 2022; Ref: scu.81190

In re Stephenson; Ex parte Brown: 1897

Where a person settles property in such a way that his interest determines on his bankruptcy ‘that is evidence of an intention to defraud his creditors’.

Judges:

Vaughan Williams J

Citations:

[1897] 1 QB 638

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 20 May 2022; Ref: scu.442616

Ezekiel v Orakpo: CA 1977

A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected the tenant’s contention on the ground that the claim for possession was not a remedy against the tenant’s property. Shaw LJ said: ‘It is clear that the section intends to inhibit any form of remedy or action which is directly designed to enforce payment of the debt which is owed. What has first to be considered is whether an action in which an order for possession is sought where a lease has been forfeited for default in payment of rent, comes within the terms of s.7(1) at all. If it does not, it is not necessary to get the leave of the court under s.7 before commencing such an action. In our view, an action for possession following the forfeiture of a lease is not within the terms of the section, and this is so whatever the ground of forfeiture to which the lessor has recourse under the covenants in the lease. The nature of the action is the same in every case, namely, that the right and interest of the lessee to possession has been terminated before its natural expiry in pursuance of a contractual provision in his lease so that he become a trespasser if he continues in occupation of the premises. The obverse of this situation is that the lessor becomes entitled to possession on forfeiture of the lessee’s interest. The action for re-entry is in the nature of an action in trespass. It is not a remedy against the property of the debtor in respect of a debt, notwithstanding that the occasion of the forfeiture is default in payment of the rent reserved by the lease. The consequence of forfeiture (subject to the power of the court to grant relief) is to determine the lessee’s interest. It is not a remedy enforcing payment of the rent due and it is not within the ambit of s.7(1).’

Judges:

Shaw LJ

Citations:

[1977] QB 260

Statutes:

Bankruptcy Act 1914 7

Jurisdiction:

England and Wales

Cited by:

See AlsoEzekiel v Orakpo CA 16-Sep-1996
A charging order was made in 1982 to secure pounds 20,000 under a judgment given in 1979. The judgment creditor did not seek to enforce the charging order until almost 12 years had elapsed since the making of the charging order. An order for . .
CitedHarlow District Council v Hall CA 28-Feb-2006
The defendant had been subject to a possession order in respect of his secure tenancy. He was later adjudged bankrupt. He asserted that the bankruptcy specifically prevented other action to enforce the debt, and the suspended possession order was . .
See AlsoEzekiel v Orakpo ChD 4-Nov-1994
The claimant had obtained a charging order to secure a judgment debt, but took no steps to enforce it for more than twelve years. The chargee denied that it could any longer be enforced, and also that the order carried interest when interest had not . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 20 May 2022; Ref: scu.240048

Henderson CA (the Liquidator of Letham Grange Development Co Ltd) v 3052772 Nova Scotia Limited: OHCS 9 Dec 2003

Judges:

Lord Carloway

Citations:

[2003] ScotCS 304

Links:

Bailii

Statutes:

Insolvency Act 1986 242

Jurisdiction:

Scotland

Cited by:

See AlsoMathew Purdon Henderson ( Liquidator of Letham Grange Development Co Ltd) v 3052775 Nova Scotia Ltd OHCS 21-Apr-2004
. .
See AlsoHenderson v 3052775 Nova Scotia Limited IHCS 18-Feb-2005
. .
See AlsoHenderson v 3052775 Nova Scotia Ltd HL 10-May-2006
The liquidator had sought to set aside a transfer of company property as having been made at an undervalue. The defence was that the buyer had assumed some of the company’s debt in addition, and in effect that it was a preference on other creditors. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 19 May 2022; Ref: scu.190761

Regina 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 required to deliver up to the Official Receiver or his trustee, contrary to section 354(2); and (b) he failed without reasonable excuse to account for the loss of a substantial part of his property or to give a satisfactory explanation of the manner of the loss, contrary to section 354(3). Large sums were involved-he obtained from the Halifax Building Society pounds 150,000 and pounds 116,250 on a false representation as to his income and that he was not bankrupt and that he did not have any judgment or proceedings for debt outstanding. Prior to these advances he was adjudged bankrupt. His wife later collected from his solicitor pounds 104,000 in cash, part of the monies advanced by the Building Society, and took it in a bin liner to India.. 2. At his trial in 1992 the prosecution, using section 433 of the 1986 Act brought evidence of answers given by him under compulsion in his bankruptcy proceedings and the trial judge ruled that these answers were not rendered inadmissible by virtue of section 31 of the Theft Act 1968 but were admissible under section 433.
Held: His appeal failed. There was no bar on a prosecution based upon evidence in the form of admissions which had been provided involuntarily under the Insolvency Act in public hearings in later Theft Act cases. The written record could be used in any later proceedings.
The Insolvency Act 1986 and its Rules not only permitted the examination of the bankrupt to take place but rendered any statement made in the course of that examination admissible in any trial. In those circumstances, with specific legislation directed to this issue, the protection provided under section 31 of the Theft Act 1968 was inapplicable:
‘The privilege from self-incrimination is abrogated in bankruptcy proceedings not by the opening words of section 31 of the Theft Act 1968, but by rule 6.175 of the Insolvency Rules 1986 made pursuant to section 412 of the act of 1986:
‘(1) The bankrupt shall at the hearing be examined on oath; and he shall answer all questions as the court may put, or allow to be put, to him . . (5) The written record may, in any proceedings (whether under the Act or otherwise) be used as evidence against the bankrupt of any statement made by him in the course of his public examination.’
Thereafter section 433 of the Act of 1986 renders the evidence admissible.’

Citations:

Gazette 24-Jun-1992, Gazette 15-Jul-1992, [1992] 3 All ER 844, [1993] QB 244

Statutes:

Theft Act 1968 31, Insolvency Act 1986 433, Insolvency Rules 1986 6.175

Jurisdiction:

England and Wales

Cited by:

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

Evidence, Criminal Evidence, Insolvency, Crime

Updated: 19 May 2022; Ref: scu.87029

Practice Note (Administration Order Applications: Independent Reports): ChD 25 Jan 1994

Guidance from Vice Chancellor on cost of obtaining independent reports.

Citations:

Times 25-Jan-1994

Jurisdiction:

England and Wales

Cited by:

CitedPractice Statement (Administration order: Reports) ChD 15-Apr-2002
The statement was issued as a gloss on the 1994 practice statement. A party wishing to restrict access to all or any part of an independent report prepared in support of an application for an administration order must be ready to support their . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 19 May 2022; Ref: scu.84975

Mulvey v Secretary of State for Social Security: HL 20 Mar 1997

The appellant had had repayable awards from the social fund and also income support benefit. Deductions were made from the benefit to repay the awards. Her estate was sequestrated. She argued that the awards should no longer be deducted.
Held: Deductions by way of recoupment for overpayments of benefit were correctly continued after bankruptcy.
Lord Jauncey said: ‘By no stretch of the imagination could the respondent’s exercise of his statutory right be described as diligence for the purpose of the law of Scotland’.
The rule at common law rule was also disapplied: ‘The deductions made by the respondent were not, as in the normal case of compensation in bankruptcy, a result of the bankruptcy, but were made in pursuance of a statutory scheme which was already in operation at the time of sequestration and with which the permanent trustee can have no concern. Prior to sequestration, the appellant had no right to receive by way of income support benefit more than her gross entitlement under deduction of such sum as had been notified to her by the respondent prior to payment of the award by the respondent. This was the result of the statutory scheme and she could not have demanded more.’

Judges:

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

[1997] UKHL 10, 1997 SC (HL) 105

Links:

House of Lords, Bailii

Statutes:

Social Security Administration Act 1992 167(3), Social Security Contributions and Benefits Act 1992 138(1)

Citing:

CitedFraser v Robertson 1881
A creditor in an obligation undertaken by a debtor prior to sequestration must, after sequestration, enforce that obligation against the estate vested in the trustee and can only seek a decree of constitution there anent against the debtor . .
CitedMacdonald’s Trustee v Macdonald 1938
So much income received by a debtor as exceeds his needs, as determined by the Sheriff, may require to be paid to the permanent trustee. The 1921 Act did not override . .
CitedBradley-Hole v Cusen CA 1953
The creditor was a tenant of rent-controlled premises who had been charged too much rent by his landlord. The bankrupt landlord’s trustee argued that the claim in respect of overpaid rent had been converted into a right to prove the debt in the . .
Appeal fromMulvey v Secretary of State for Social Security IHCS 24-Nov-1995
The claimant had first been granted a loan from the Social Fund. After her bankruptcy, the benefits loan was recoverable from benefits even after the bankruptcy if the loan was not proved in the bankruptcy. The right to recover by deduction was but . .

Cited by:

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

Insolvency, Benefits, Scotland

Updated: 19 May 2022; Ref: scu.84121

Levy v Legal Services Commission (Formerly the Legal Aid Board): CA 10 Nov 2000

A costs order made in the course of family proceedings had the same protection against enforcement through insolvency proceedings as do other family orders. No provable bankruptcy debt arose because it was made under an order in family proceedings. There were no special circumstances to require the court to exercise its discretionary jurisdiction to found a bankruptcy petition on a non-provable debt. A party served with a statutory demand based upon a non-provable debt has the right to have the demand set aside, since there was no realistic prospect of a bankruptcy order following.

Citations:

Gazette 30-Nov-2000, Times 01-Dec-2000, [2000] EWCA Civ 285

Links:

Bailii

Statutes:

Insolvency Rules 1986/1925 12.3(2)(a)

Jurisdiction:

England and Wales

Insolvency, Family, Legal Aid

Updated: 19 May 2022; Ref: scu.83039

Dennison v Krasner, Lesser, Lawrence: CA 6 Apr 2000

A retirement annuity or personal pension was part of a bankrupt’s estate before the recent Act, and vested immediately in the trustee on the bankruptcy. As such there was no need to make application to the court under s310 for an income payment order before those assets could be made available to the creditors. Acts of Parliament had at various times exempted certain kinds of pension assets from being available in this way, typically by avoiding assignments, but for this kind of pension this only happened in 1999. Chadwick LJ: ‘. . . in construing the relevant provisions of the [Insolvency Act 1986] the court should follow the approach indicated by Lord Diplock in Garland v British Rail Engineering Ltd [1983] 2 AC 751 at 755, and construe the words of the statute, if they are reasonably capable of bearing such a meaning, as intended to carry out an international obligation which the United Kingdom has assumed under a treaty or convention and not so as to be inconsistent with that obligation.’

Judges:

Chadwick LJ

Citations:

Times 18-Apr-2000, Gazette 11-May-2000, [2000] EWCA Civ 112, [2001] Ch 76

Links:

Bailii

Statutes:

Insolvency Act 1986 306 (1) 310, Welfare Reform and Pensions Act 1999

Jurisdiction:

England and Wales

Citing:

CitedGarland v British Rail Engineering Ltd ECJ 9-Feb-1982
garland_breECJ1982
The fact that an employer (although not bound to do so by contract) provides special travel facilities for former male employees to enjoy after their retirement constitutes discrimination within the meaning of article 119 against former female . .
ApprovedIn Re Landau (A Bankrupt) ChD 1-Dec-1996
At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .

Cited by:

CitedMalcolm v Mackenzie, Allied Dunbar Plc CA 21-Dec-2004
The bankrupt complained that having been made bankrupt, his self-employed pension was subject to attachment by his trustee, but had he been a member of a company scheme the asset would not, and that this was discriminatory.
Held: The . .
CitedHorton 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Financial Services

Updated: 19 May 2022; Ref: scu.82838

In Re Park Air Services Plc; Christopher Moran Holdings Ltd v Bairstow and Another: HL 4 Feb 1999

The tenant company went into liquidation, the receiver disclaimed the lease, and the landlord claimed compensation under the Act. The question concerned how the compensation was to be calculated.
Held: Where a solvent tenant under an onerous lease goes into voluntary liquidation, and the liquidator disclaims the lease, the right to payment of rent disappears, and the landlord is entitled to compensation only, by payment discounted for acceleration.
The court had to calculate the compensation according to general principles. It was a statutory right where any common law or contractual rights were extinguished by the disclaimer. The right replaced any rights which would have arisen under the lease. The receiver said that the damages should be reduced to allow for the fact of the acceleration of the receipts. He was correct. The Court of Appeal had been wrong to treat the freeholder as a secured creditor making a voluntary proof. His claim was for the statutory right of compensation, not any made under the lease itself. The common law right to damages was lost on the disclaimer. Appeal allowed, but with a discount of 5.5% to the accelerated rent.

Judges:

Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hope of Craighead Lord Hobhouse of Woodborough, Lord Millett

Citations:

Times 05-Feb-1999, [1999] UKHL 2, [2000] 2 AC 172, [1999] 1 All ER 673, [1999] 2 WLR 396, [2000] ANZ Conv R 174, [1999] 1 EGLR 1, [1999] 1 BCLC 155

Links:

House of Lords, Bailii

Statutes:

Insolvency Act 1986 178(6), Insolvency Act 1986 178, Insolvency Rules 1986 4.88(2)

Jurisdiction:

England and Wales

Citing:

CitedHindcastle Ltd v Barbara Attenborough Associates Ltd and Others HL 22-Feb-1996
The guarantor of an original tenant under the lease remains liable after the disclaimer the lease on insolvency. The disclaimer operates to determine the lease altogether with the result that the landlord’s reversion is accelerated. ‘In order to . .
Appeal fromPark Air Services Plc; Christopher Moran Holdings Limited v Bairstow and Ruddock CA 1-May-1997
If a lease is determined or treated as determined in a winding up or in a bankruptcy, the landlord is entitled to prove in principle for all the rent and other payments which he would have been entitled to recover from the tenant for the residue of . .
CitedEx parte Llynvi Coal and Iron Co; In re Hide 1871
The trustee in bankruptcy disclaimed an agreement for a lease under Section 23. The landlord claimed to prove as creditor under the section.
Held: Where one party has repudiated a contract and the other party has accepted that repudiation as . .
CitedPhoto Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
CitedOverstone Ltd v Shipway 1962
Where a claimed loss will be suffered over a period in the future, the computation will have to make allowance for any advancement that has occurred. . .
CitedIn re London and Colonial Co.; Horsey’s claim 1868
. .
CitedIn re New Oriental Bank Corporation (No.2) 1895
Where a tenancy continues after the insolvency of the tenant, the landlord is entitled (i) to prove for all the arrears of rent; (ii) to enter a claim for all future rent; and (iii) as rent accrues due, to submit proofs in the liquidation from time . .
CitedHardy v Fothergill 1888
Rent falling due after a winding up of the tenant was a future debt for which the landlord could have proved in the tenant’s liquidation. . .
CitedIn re Metropolis Estates Co Ltd CA 1940
. .
CitedOppenheimer v British and Foreign Exchange and Investment Bank 1877
A court can give a liquidator leave to distribute, thus protecting him from any risk of personal liability, but only if he retained a sum sufficient when invested at compound interest to fund future liabilities. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Damages, Insolvency

Updated: 19 May 2022; Ref: scu.82112

Holder and Others v APC Supperstone and Others: ChD 24 Nov 1999

Tenants obtained a charging order against their landlord, and, after his bankruptcy, incurred substantial costs defending their charge against other claimants. The trustee declined to allow payment of the costs.
Held: The costs were properly payable under the Act. The charge operated also as an equitable charge, and such a charge would carry the costs of defending the chargee’s rights. A charging order covers not only the judgment debt, but also future interest on the debt and ‘all costs charges and expenses reasonably and properly incurred in enforcing or preserving (the) security.’

Citations:

Gazette 08-Dec-1999, [2001] 1 All ER 473, [1999] EWHC Ch 189

Links:

Bailii

Statutes:

Charging Orders Act 1979 1(1) 3(4)

Jurisdiction:

England and Wales

Cited by:

CitedOwo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 19 May 2022; Ref: scu.81437

Haq v Singh and Another: CA 25 May 2001

The claimant had been made bankrupt, and when she sued the defendant, was challenged as to her standing. She obtained an assignment of the right of action from her trustee in bankruptcy. She then sought to amend her pleadings under the rule. It was held that ‘capacity’ in this context required some alteration from one representative capacity to another. Here the alteration was not in fact a change in capacity, and accordingly she could not use the rule as a basis for amending her pleadings.

Judges:

Arden LJ

Citations:

Times 10-Jul-2001, [2001] EWCA Civ 957, [2001] 1 WLR 1594

Links:

Bailii

Statutes:

Civil Procedure Rules 17.4(4)

Jurisdiction:

England and Wales

Cited by:

CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 19 May 2022; Ref: scu.81224

Foxley v United Kingdom: ECHR 20 Jun 2000

A bankrupt was suspected of disposing of his assets to avoid a confiscation order. The trustee in bankruptcy obtained an order for the bankrupt’s post to be diverted to her whilst he was in prison. She opened all post and copied it before forwarding it to the bankrupt. This included correspondence with his legal advisers. The order and her practice infringed the bankrupt’s human rights insofar as no distinction was made with respect to correspondence protected by legal privilege, and insofar as the order continued in effect after the bankrupt’s discharge. ‘The Court can see no justification for this procedure and considers that the action taken was not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client. It notes in this connection that the Government have not sought to argue that the privileged channel of communication was being abused; nor have they invoked any other exceptional circumstances which would serve to justify the interference with reference to their margin of appreciation.’

Citations:

Times 04-Jul-2000, (2001) 31 EHRR 637, 33274/96, [2000] ECHR 223, [2000] ECHR 224

Links:

Worldlii, Bailii

Statutes:

Insolvency Act 1986 371, European Convention on Human Rights

Cited by:

CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Legal Professions

Updated: 19 May 2022; Ref: scu.80653

Dora v Simper and Others: ChD 26 May 1999

A creditor’s claim to set aside an insolvent debtor’s transaction as being at an undervalue could not be pursued to benefit that creditor alone, and a plaintiff was not entitled to his full judgment and costs. A conspiracy claim was hard to establish.

Citations:

Times 26-May-1999

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Insolvency

Updated: 19 May 2022; Ref: scu.80100

Dacorum Borough Council v Horne: CA 26 May 2000

The requirement that a statutory demand must be signed by someone claiming authority of the creditor to sign it could be satisfied by someone who in fact did have authority in law to make the demand. The rules should be read according to its purpose.

Judges:

Morritt, Chadwicj LJJ, Charles J

Citations:

Times 14-Jun-2000, [2000] EWCA Civ 178

Links:

Bailii

Statutes:

Insolvency Rules 1986/1925 6.1(1)

Jurisdiction:

England and Wales

Insolvency

Updated: 19 May 2022; Ref: scu.79775

Connolly v Sellers Arenascene Ltd: CA 2 Feb 2001

The fact that a director held a majority shareholding in a company was not enough of itself to say he was not an employee. It is an important factor, but the tribunal must look at all the factors. The tribunal having decided that the director’s service agreement was not a sham, it was inevitable they should conclude he was an employee, and had the right not to be unfairly dismissed.

Citations:

Times 08-Mar-2001, Gazette 22-Feb-2001, [2001] EWCA Civ 184

Links:

Bailii

Statutes:

Employment Rights Act 1996 230

Jurisdiction:

England and Wales

Citing:

Appeal fromConnolly v Sellers Arenascene Ltd EAT 14-Sep-1999
EAT Contract of Employment – Breach of Contract . .
Lists of cited by and citing cases may be incomplete.

Employment, Company, Insolvency

Updated: 19 May 2022; Ref: scu.79451

Cork v Rolph: ChD 21 Dec 2000

The applicant was an insolvency practitioner, appointed as liquidator in some 116 insolvencies. He was moving to a different firm, and sought to be relieved from his duty to act in these cases. Such applications must be judged on their individual merits. In this case, his new duties would detract from his ability properly to supervise the liquidations, and he had not taken with him the staff who had been employed in dealing with the cases. Those factors suggested that it would be more economic to transfer the appointments. In this case, it was satisfactory to merely advertise the change of appointments, rather than to write to each creditor individually.

Citations:

Times 21-Dec-2000

Insolvency

Updated: 19 May 2022; Ref: scu.79509

Cox v Bankside Members Agency Ltd and Others: QBD 27 Jan 1995

Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents against each of which claims were being pursued, by different Lloyd’s Names. The essential issue was whether each claim ascertained as against an agent exhausted the agent’s insurance cover pro tanto, or whether all claims falling individually within a policy’s scope ranked or could be treated as ranking pari passu against the policy in whatever order they were ascertained against the insured agent or agents.
Held: Lloyds claims are to have priority of payment according to time of orders. The statutory transfer under the Act occurred notwithstanding that the insured’s liability to the third party had not yet been extinguished. The statutory transfer to the third party of the insured’s right against his insurer takes place at the moment of his bankruptcy.
Phillips J said: ‘In a situation of solvency, the ranking of claims against the EandO underwriter depends upon the order in which the third party Names establish liability against the assured by judgment, arbitration award or settlement, thereby giving rise to a vested right on the part of the assured to indemnity in accordance with the terms of the cover. The same is true in a situation of insolvency. If the insolvency occurs after third party Names have established quantified liability, the right or rights to indemnity that were thereby established in the assured agent will be transferred to the Names upon the assured becoming formally insolvent. If quantified liability has not been established at the date of insolvency, a third party Name asserting a claim will have transferred under the Act merely an inchoate or contingent right. If before that Name establishes a quantified claim, other quantified claims are established which exhaust the cover, his contingent right will be rendered nugatory.’ Phillips J summarised the relationship between the insurers and the solicitors acting: ‘Where underwriters instruct a solicitor to conduct the defence, they thereby create the relationship of solicitor and client between the solicitor and the assured . . The normal consequence of this is that the assured becomes liable to pay the solicitor’s costs, even if the underwriters were also liable for those costs . . Those costs are properly deemed to be incurred by the assured, even if they are funded by underwriters. . .’

Judges:

Phillips J

Citations:

Times 27-Jan-1995, [1995] 2 Lloyd’s Rep 437

Cited by:

Appeal fromCox v Bankside Members Agency Ltd and Others CA 16-May-1995
Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s . .
CitedCentre Reinsurance International Co and Another v Curzon Insurance Ltd ChD 12-Feb-2004
It was a necessary part of the system of statutory transfers of insurance obligations under the Act, that the rights should be transferred before exhaustion of any policy excess, and notwithstanding the insolvency. The rights (inchoate at this . .
CitedFirst National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
CitedLaw Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency, Insurance

Updated: 19 May 2022; Ref: scu.79586

Coutts and Co v Stock: ChD 24 Nov 1999

Where an ailing company continued to trade, section 127 operated as between the company and its directors and creditors, and not so as to invalidate payments made by the company’s bank on cheques drawn before the date of presentation of the petition, and honoured before the date of the winding up order. Accordingly when an overdraft arose as a result of such payments, a person guaranteeing the company’s overdraft remained liable for the result.
The acts of a Bank in honouring cheques drawn on an insolvent company’s overdrawn account were a loan by the Bank to the company, but not a disposition of the company’s property. Section 127 ‘does not invalidate a company’s assumption of liabilities’.

Judges:

Lightman J

Citations:

Times 30-Nov-1999, Gazette 17-Dec-1999, [1999] EWHC Ch 191, [2000] 1 WLR 906

Links:

Bailii

Statutes:

Insolvency Act 1986 127

Jurisdiction:

England and Wales

Company, Insolvency, Banking

Updated: 19 May 2022; Ref: scu.79572

Carter-Knight (A Bankrupt) v Peat: ChD 27 Jul 2000

The applicant had fallen into arrears with the voluntary arrangement, and the supervisor petitioned for bankruptcy. Before the hearing the debtor paid off the arrears, but the supervisor asked to continue with the petition. However in this case the judge had failed to give reasons for his decision, and the case was remitted to another district judge to be reheard.

Citations:

Times 11-Aug-2000, Gazette 27-Jul-2000

Insolvency

Updated: 19 May 2022; Ref: scu.78923

Biosource Technologies Inc v Axia Genetics Plc (In Administration): ChD 25 Nov 1999

The rule which prevents a company in administration being prosecuted without the leave of the court, was not intended only to restrict creditors. Here another company wanted to bring patent infringement proceedings, but were first to be required to obtain the court’s consent.

Citations:

Times 25-Nov-1999, Gazette 25-Nov-1999

Statutes:

Insolvency Act 1986 11(3)(d)

Insolvency, Litigation Practice, Intellectual Property

Updated: 18 May 2022; Ref: scu.78409

In Re Conley: CA 1938

A loan had been made, secure by a deposit by a third party. The company was said to have repaid the secured overdraft to secure the release of the deposit and its release from the hands of the general creditors. The court was asked whether the person providing the security had acted as a ‘surety or guarantor’ within section 44 of the 1914 Act. The depositor argued that since a bare deposit had not created a personal liability, she could not be a surety.
Held: She could be so treated under the Act.

Citations:

[1938] 2 All ER 127

Statutes:

Bankruptcy Act 1914 44

Jurisdiction:

England and Wales

Cited by:

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

Updated: 18 May 2022; Ref: scu.617852

In re Wanser Ltd: 1891

A landlord of Scottish property began proceedings after a winding up order for sequestration of the company’s goods on the premises in order to answer for future rent.
Held: North J allowed the sequestration to continue, being satisfied that under Scottish law the landlord was a secured creditor at the date of commencement of the winding up, and therefore in the same position as a mortgagee Proceedings in insolvency begun without the stipulated leave should not be regarded as irretrievably null but rather as existing and capable of redemption by the late giving of leave.

Judges:

North J

Citations:

[1891] 1 Ch 305

Cited by:

CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Scotland, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.567273

Re a Debtor (No 222 of 1990) ex parte the Bank of Ireland: ChD 1992

Harman J discussed the rules of a creditors’ meeting: ‘In my judgment the scheme of the meeting rules in r 5.17 is quite plainly a simple one. As one would expect the meeting is not the place to go into lengthy debates as to the exact status of a debt, nor is it the time to consider such matters as this court, sitting as the Companies Court, frequently has to consider as such whether a debt is bona fide disputed upon substantial grounds, an issue which leads to a great deal of litigation and frequently takes a day or so to decide. None of that could possibly be a suitable process to be embarked upon at a creditors’ meeting.
The scheme is quite clear. The chairman has power to admit or reject; his decision is subject to appeal; and if in doubt he shall mark the vote as objected to and allow the creditor to vote. That is easily carried out upon the basis advanced by Mr Moss QC, Mr Mann and Mr Trace. It provides a simple clear rule for the chairman, not a lawyer, faced at a large meeting with speedy decisions necessary to be made to enable the meeting to reach a decision. On that basis the chairman must look at the claim; if it is plain or obvious that it is good he admits it, if it is plain or obvious that it is bad he rejects it, if there is a question, a doubt, he shall admit it but mark it as objected.’

Judges:

Harman J

Citations:

[1992] BCLC 137

Cited by:

CitedAB Agri Ltd v Curtis and Others Misc 22-Jul-2016
(Leeds County Court) The creditor sought to have a proof admitted for pounds 479k, but the chair admitted it only for pounds 1.00, and the IVA proposal was accepted again the wishes of the creditor. The creditor said that the IP had misunderstood . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 May 2022; Ref: scu.567379

Borneman v Wilson: CA 1884

The Wilsons, father and son, had acted as commercial agents of one Borneman. He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction and the appointment of a receiver. The Wilsons served a notice of appeal, but shortly afterwards a bankruptcy order was made against them. On 7 October 1884, a trustee in bankruptcy was appointed. On 18 October, the trustee was substituted as a defendant, apparently ex parte on the application of Borneman. On 31 October, he gave notice abandoning the appeal. He then entered an appearance in the substantive proceedings and called for a statement of claim. Borneman applied for an order against the trustee requiring him to pay the costs of the appeal which he had incurred before receipt of the notice of abandonment.
Held: The order was made. notwithstanding the trustee’s prompt and express abandonment of the appeal, by appearing and calling for a statement of claim in the Chancery proceedings he had adopted the action, and that meant the entire action including the appeal.
Bowen LJ said that the trustee: ‘cannot adopt part of the action and leave out the rest.’

Judges:

Bowen and Fry LJJ

Citations:

(1884) 28 Ch D 53

Cited by:

AdoptedSchool Board for London v Wall Brothers CA 1891
. .
CitedTrustee of Property of Vickery (a Bankrupt) v Modern Security Systems Limited CA 15-Oct-1997
A trustee in bankruptcy will be treated as the party if he has in fact adopted the proceedings by conducting the litigation, even if there has been no formal substitution . .
CitedBPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 18 May 2022; Ref: scu.566481

School Board for London v Wall Brothers: CA 1891

Judges:

Lord Esher MR and Lopes and Kay LJJ

Citations:

(1891) 8 Morr 202

Citing:

AdoptedBorneman v Wilson CA 1884
The Wilsons, father and son, had acted as commercial agents of one Borneman. He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction . .

Cited by:

CitedBPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Lists of cited by and citing cases may be incomplete.

Costs, Insolvency

Updated: 18 May 2022; Ref: scu.566482

Carman v The Kronos Group SA: 2006

The court acted on the basis that section 213 of the 1996 Act had extra-territorial effect.

Citations:

[2006] BCC 451

Statutes:

Insolvency Act 1996 213

Jurisdiction:

England and Wales

Cited by:

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.

Insolvency, Jurisdiction

Updated: 18 May 2022; Ref: scu.565825

Re Howard Holdings Inc: ChD 1998

It is difficult to envisage any developed system of corporate law which does not impose some obligation on directors to consider whether the company is solvent and, if not, to consider what should be done about it.
Chadwick J said: ‘I accept that when deciding whether or not to make a declaration under s.214 of the Act, the court will take into account what the obligations of the director to his company were at the time when he had the opportunity to minimise the potential loss to the company’s creditors. And I accept that it might well be that, in circumstances where the relevant governing law imposed no obligation on directors to have any regard to the interests of the company or its creditors in the course of their management of its affairs, the English court would decide that a declaration was not appropriate.’

Judges:

Chadwick J

Citations:

[1998] BCC 549

Statutes:

Insolvency Act 1986 214

Cited by:

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.

Insolvency

Updated: 18 May 2022; Ref: scu.565824

In re Bluck, Ex parte Bluck: 1887

The discretionary character of a costs order meant that it was not even a contingent liability until the order had actually been made

Citations:

(1887) 57 LT 419

Cited by:

CitedIn re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
CitedBPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 18 May 2022; Ref: scu.537712

In re A Debtor (No 68 of 1911): 1911

Citations:

[1911] 2 KB 652

Cited by:

CitedIn re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
CitedBPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 18 May 2022; Ref: scu.537713

In re Pitchford: 11 Jan 1924

Citations:

[1924] 2 Ch 260

Cited by:

CitedIn re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
CitedGeneral Dynamics Information Technology Ltd v Carranza EAT 10-Oct-2014
EAT DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make . .
CitedBPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 18 May 2022; Ref: scu.537714

In re Kavanagh: KBD 1949

Before her bankruptcy the bankrupt had sued her former solicitor for breach of confidence. The claim was pending at the date of her bankruptcy but later settled on terms which involved the defendant paying damages. The bankrupt claimed that the damages were attributable to damage to her reputation and therefore payable to her and not her trustee; the trustee in bankruptcy argued they were not, and were therefore part of her estate and payable to him.
Held: Where sums received in a single suit are partly attributable to injury to credit and reputation and partly to injury to property, there may be a right to apportion. The sum fell to be divided equally.

Citations:

[1949] 2 All ER 264

Cited by:

CitedHannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 May 2022; Ref: scu.525973

Cornhill Insurance plc v Improvement Services Ltd: 1986

Held: Where a company was under an undisputed obligation to pay a specific sum and failed to do so, it could be inferred that it was unable to do so; that accordingly, the defendants could properly swear to their belief in the plaintiff company’s insolvency and present a petition for its winding up.
Harman J said: ‘That appears to me to be sound reason and sound law. I re-enforce it by reference to a decision in Re a Company 1950 (94) SOL J 369 Visey J in the matter in which counsel of the utmost distinction in Chancery at that time both leading and junior counsel appeared said that where a Company was well known and wealthy it was the more likely the delay in settlement of its obligation would create suspicion of its financial embarrassment.’ ‘Rich man and rich companies which did not pay their debts had only themselves to blame if it were thought that they could not pay them.’

Judges:

Harman J

Citations:

[1986] 1 WLR 1, [1986] BCLC 26

Citing:

CitedMann v Goldstein ChD 1968
Ungoed-Thomas J said: ‘When the creditor’s debt is clearly established it seems to me to follow that this court would not, in general at any rate, interfere even through the company would appear to be solvent, for the creditor would as such be . .

Cited by:

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.

Company, Insolvency

Updated: 18 May 2022; Ref: scu.535113

Re Autotech Design Ltd, HMRC v Autotech Design Ltd: ChD 2006

Michael Briggs QC summarised the approach to be adopted by the court at the hearing of for the appointment of an interim liquidator pending the hearing of an insolvency petition brought by the Revenue: ‘Although the formulations of the approach to be adopted by the Court differ slightly, their effect is substantially the same and is as follows:
(1) These are not disputed debt cases. This is because the excise duty, and here the VAT, is due as provided for in the relevant assessment notwithstanding a pending appeal.
(2) Nonetheless the question whether the appeal has a real prospect of success or (which is the same thing) whether the debt created by the assessment is bona fide disputed on substantial grounds, is of central importance to the discretion whether to make a winding up order. In that respect Sir Andrew Morritt in the Arena case in the Court of Appeal said this at para.52:
‘If there is a real doubt as to the propriety of the assessments then the issue should be resolved by the tribunal not only because the tribunal is the forum prescribed by Parliament but also because it is not the function of the Companies Court in the exercise of its winding up jurisdiction to adjudicate in respect of a genuinely disputed debt. By contrast, a company which is unable to pay its debts is not to be permitted to delay its winding up by advancing spurious excuses for non payment of the petitioner’s debt’.
(3) Even if the material before the Companies Court does not lead to an affirmative answer to that question there is still a discretion to adjourn or even to dismiss the petition. Prominent in that analysis will be the question whether the company has had a fair opportunity to understand and to answer Customs’ case and to challenge the propriety of the assessment, and again I read from the judgment of Sir Andrew Morritt in Arena in the Court of Appeal at para.92:
‘In circumstances such as these it is essential that the procedure is fair. I understand that there is no prescribed form of assessment and no complaint was made about the form used in this case. Nevertheless it is important that the Commissioners should specify either in the assessment or a letter accompanying it what irregularity they rely on and the facts said to support the contention that the person assessed caused it. This would enable a person in receipt of such an assessment to challenge its propriety. If no such information is given, and the person assessed merely appeals, then the onus is on him to disprove causation without knowing what he is alleged to have caused. This could be oppressive, the more so as he is required to pay the assessed duty before appealing unless the Commissioners agree or the tribunal orders otherwise’.
Anglo Overseas would have been a case for the exercise of a discretion to dismiss or adjourn the petition rather than to make a winding up order had not Mr. Justice Lewison already concluded that there was a real prospect of success on appeal against the assessment.
(4) The Companies Court will not readily or lightly reject without cross-examination evidence tendered by the company in support of an allegation that it has a real prospect of success on appeal. The procedure for hearing of winding up petitions is not appropriate for the weighing of the relative strength or credibility of competing evidence. Furthermore, in cases such as the present, Customs has the additional burden of proving a serious fraud.
(5) But there may be cases, and Arena was confirmed, after some hesitation, in the Court of Appeal to be just such a case, where the company’s case is so completely at variance with the documents, or internally inconsistent, as to be capable of being branded ‘incredible’ without any form of trial. Alternatively, it may be possible for the Companies Court to see (as it did in Arena) that it will simply be impossible for the company to advance any case on appeal with any real credibility.’

Judges:

Michael Briggs QC

Citations:

[2006] EWHC 1596 (Ch)

Jurisdiction:

England and Wales

Citing:

CitedCommissioners of Customs and Excise v Anglo German Breweries Limited ChD 29-Nov-2002
The respondents appealed against imposition of assessments for the diversion of alcohol products from bonded warehouses without payment of duties. Pretence had been made of deliveries abroad, but the goods were later diverted. The company was . .
CitedThe Commissioners for Customs and Excise, The Arena Corporation Limited v The Arena Corporation Limited / Schroeder ChD 12-Dec-2003
. .
CitedCustoms and Excise v Anglo Overseas Ltd ChD 5-Oct-2004
. .
CitedIn re The Arena Corporation Limited; Commissioners for Customs and Excise v The Arena Corporation Limited; the Arena Corporation Limited v Schroeder CA 25-Mar-2004
Sir Andrew Morritt V-C said that in the context of winding up proceedings the test for whether there is a genuine triable issue in a disputed claim, is whether the debt is bona fide disputed on substantial grounds, which, for practical purposes, is . .
CitedHM Customs and Excise v Jack Baars Wholesale, Baars, and Baars CmpC 16-Jan-2004
. .

Cited by:

CitedRevenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 18 May 2022; Ref: scu.510893

Ex parte Sidebotham; In re Sidebotham: CA 1880

James LJ said: ‘but the words ‘person aggrieved’ do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.’

Judges:

James LJ

Citations:

(1880) 14 Ch D 458, [1874-80] All ER 588

Statutes:

Bankruptcy Act 1869 71

Cited by:

CitedWalton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 May 2022; Ref: scu.470545

In Re Vos; Dick v Kendall Freeman: 2006

The deceased had been a name at Lloyds and died insolvent. The court considered the meaning and effect of regulation 12 of the 1986 Order.
Held: The provision meant what it said, with the result that if an Insolvency Administration Order was made at any time, all dispositions since the death of the deceased were prima facie void, even if made before the petition, and no matter how long the intervals between death and the presentation of the petition, and between presentation and order.

Judges:

Chief Registrar Baister

Citations:

[2006] BPIR 348

Statutes:

Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986/1999) 12

Jurisdiction:

England and Wales

Wills and Probate, Insolvency

Updated: 18 May 2022; Ref: scu.442539

International Air Transport Association v Ansett Australia Holdings Ltd: 6 Feb 2008

(High Court of Australia) The rules of the clearing house scheme had been modified following the British Eagle decision so as to exclude any liability or right of action for payment between member airlines.
Held: (by a majority, Kirby J dissenting) The rule changes were effective to make the IATA the sole creditor of Ansett, and that the revised system did not have the effect of administering debts due to an insolvent company otherwise than in accordance with the mandatory pari passu rule. The court referred to Ex p Mackay and suggested that Lord Cross’ speech in British Eagle was based in part on the anti-deprivation principle; and that there was no need for recourse to the rule that a contract which is contrary to public policy is void, because the statute was an overriding one which applied according to its terms.

Judges:

Gleeson CJ

Citations:

[2008] HCA 3, (2008) 234 CLR 151, (2008) 242 ALR 47, (2008) 82 ALJR 419, (2008) 65 ACSR 1, (2008) 26 ACLC 38

Links:

Austlii

Citing:

CitedBritish Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .

Cited by:

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

Commonwealth, Insolvency

Updated: 18 May 2022; Ref: scu.442611

Smith v Mills: 1584

A. became bankrupt, and, after a commission awarded against him, sold part of his goods to one of his creditors in part satisfaction of his debt ; and afterwards the comissioners by indenture sold those goods jointly to the plaintiffs, who were the other creditors : Held that the sale by the commissioners was good, for the intent of the statute 13 Eliz. c. 7, is to relieve the creditors equally in distribution of the bankrupt’s estate, and he himself cannot dispose of his property after the commission awarded ; and if a creditor refuse or neglect to come in under the commission, and the property is assigned to others, it is aIso good.

Citations:

[1584] EngR 15, (1584) 2 Co Rep 25, (1584) 76 ER 441

Links:

Commonlii

Insolvency

Updated: 18 May 2022; Ref: scu.429297

Fletcher et al v Dominam Sedley et al: 6 Mar 1704

A makes a bill of sale of his goods to a trustee, for one who lived with him as his wile, and so reputed. Bill of sale set aside as fraudulent against creditors. A purchases a lease of a house in the name of B., and takes a declaration of trust to permit A. to enjoy for life, and then in trust for one who lived with him as his wife, and was so reputed. This lease is not assets of A. nor liable to his creditors after his death ; for when a man purchases, he may settle the estate as he pleases.

Citations:

[1704] EngR 42, (1704) 2 Vern 490, (1704) 23 ER 913

Links:

Commonlii

Insolvency

Updated: 18 May 2022; Ref: scu.392137

Montgomery v Wanda Modes Ltd: ChD 2003

Park J said: ‘The requirement that the debtor must not have been able to litigate his . . cross-claim was not part of the ratio decidendi of Bayoil: in that case there was no dispute that, because (I infer) the whole dispute between the two parties was governed by an arbitration clause, the debtor had not been able to litigate its cross-claim. Therefore there was no issue on this particular point. So where does the proposition stated by Nourse LJ come from? I respectfully agree with Rimer J that there is no other case which establishes it. The wider principle enunciated in Bayoil was that a cross-claim could be a ground for dismissing a winding-up petition based on an undisputed debt. The court derived that principle largely from the decision of the same court in [Portman] . . [Portman] certainly did not decide that a debtor company could not rely on a cross-claim after all if it could have litigated it earlier but had not done so. If that had been the view of the court it would almost certainly have acceded to the winding up petition instead of dismissing it:
There has been only one other directly relevant Court of Appeal case after Portman and before Bayoil. It is [LHF Wools]. A winding up petition against the company was dismissed on the ground that it had a cross-claim which, if it succeeded, would exceed the debt. As in Bayoil there was no issue about the company having been able to litigate its cross-claim but not having done so. The cross-claim would have to be litigated in Belgium and under Belgian law could not yet have been commenced. The headnote does however contain these words
‘. . the modern practice that where a company had a genuine and serious cross-claim against the petitioner which it had not reasonably been able to litigate, the petition should usually be stayed or dismissed’.
I think that, as Rimer J suggested, the words which I have emphasised are likely to have been the origin of the words in Nourse LJ’s judgment which I am considering here. However, the problem is that there is nothing to support them in the judgment in the LHF Wools case. Although it was true that the company could not have litigated its cross-claim, none of the three members of the court says anything to suggest that that was important, or that the result would or might have been otherwise if the company could already have litigated its cross-claim. Indeed, Harman LJ said that the company appealed on the ground that ‘according to modern practice if there is a genuine cross-claim, it is just as good as if there was a disputed debt’, making no reference to whether or not the cross-claim could reasonably have been litigated already. I can only conclude that the headnote writer went beyond what the court had decided, and that his expansion may have found its way into the judgment of Nourse LJ in Bayoil.
In the circumstances I do not consider that I am bound by what Nourse LJ said to reject [the company’s] argument on the ground that it could have litigated its cross-claim against [the petitioner] but had not done so. As a matter of principle I would not myself think it right to decide against [the company] on that ground. I do not think that there is anything objectionable in a company which believes that it has a claim against another party holding back from pursuing it, but then, if the other party starts to threaten it with winding-up proceedings if it does not pay a debt owed in the other direction, deciding that it must pursue its cross-claim after all. A decision in favour of [the petitioner] on this issue would have the undesirable effect of penalising a company for refraining from litigating an issue when it first could have done, and encouraging parties to litigate their possible claims sooner rather than later.’

Judges:

Park J

Citations:

[2003] BPIR 457

Jurisdiction:

England and Wales

Cited by:

CitedDennis Rye Ltd v Bolsover District Council CA 6-May-2009
Right to raise claim against rates insolvency
The ratepayer company sought leave to appeal and to challenge the use of insolvency proceedings to recover council tax. It said that it had a valid counterclaim.
Held: Leave was refused. ‘A company is not prevented from raising a cross-claim . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 May 2022; Ref: scu.342122

Johnson v Emerson: 1871

Cleasby B recognised that the tort of malicious prosecution could be committed in the malicious presentation of a winding up petition. The effect of presentation of such a petition was immediately damaging to the company which was the subject of the petition.

Judges:

Cleasby, B

Citations:

(1871) Law Rep 6 Ex 329, (1871) LR 6 Ex 329

Jurisdiction:

England and Wales

Cited by:

CitedGregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
CitedGregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
CitedCrawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
CitedCrawford v Jenkins CA 24-Jul-2014
The parties had divorced but acrimony continued. H now complained of his arrests after allegations from his former wife that he had breached two orders. He had been released and no charges followed. The court had ruled that W’s complaints were . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Insolvency

Updated: 18 May 2022; Ref: scu.267523

Inland Revenue Commissioners v Goldblatt: 1972

In a winding up case, the Commissioners can if necessary proceed against a receiver for misfeasance.

Citations:

[1972] Ch 498

Jurisdiction:

England and Wales

Cited by:

CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Insolvency, Torts – Other

Updated: 18 May 2022; Ref: scu.268780

Mann and others v Secretary of State for Employment: HL 8 Jul 1999

When acting effectively as a guarantor of a company’s obligations to its employees upon insolvency in paying unpaid wages, the Secretary of State for Employment was entitled to set off against those payments, payments made by way of compensation by administrative receivers by way of a protective award for employment entitlements. European Directives did not apply on receiverships. The House described the provisions of section 166 and 167 as a ‘state guarantee’ and the Secretary of State was a ‘guarantor, liable only for whatever the employee was entitled to be paid by his employer’.

Citations:

Times 19-Jul-1999, [1999] UKHL 29, [1999] ICR 898

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromMann and Others v Secretary of State for Employment CA 30-Sep-1996
LMA An Industrial tribunal does not have the jurisdiction to entertain Francovich state liability for damages actions – these must be heard by the ordinary courts. . .

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

Employment, Insolvency, European

Updated: 17 May 2022; Ref: scu.159013

Ashe v Mumford and Others: ChD 7 Mar 2000

The Regulation under question was procedural;, and a failure to comply with its requirements was not to be deemed fatal. The requirement for a trustee to identify the transactions to be set aside did not require every single part of the scheme to be detailed, provided as in this case the purpose of the scheme was clearly to defeat creditors and the trustee in bankruptcy. The mother of a bankrupt purchased her council house with a fifty per cent discount, and was funded as to the rest by the bankrupt’s wife.

Citations:

Times 07-Mar-2000, Gazette 09-Nov-2000

Statutes:

Insolvency Rules 1986 (1986 No 1925) 7.3

Cited by:

Appeal fromAshe v Mumford CA 2001
The court considered the relative interests arising in the trust of a house bought under the right to buy scheme.
Held: The court upheld the trial judge’s decision that the discount should not be apportioned between the parties, the series of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 17 May 2022; Ref: scu.77892

Anderson v Hyde and Others: CANI 2 May 1996

The defendant company was wound up after the receiver had been appointed and the liquidator declined to take over the defence to the action. The judge had refused an application for a third party costs order against the receivers.
Held: Had the defence been taken over by the liquidator the costs of the claimant would have ranked in priority to the claims of ordinary unsecured creditors, and it would not be just and equitable for a receiver to be able to defend the action without any liability for costs whatever the outcome. A receiver of a company taking over the defence of a case is liable in costs as a party, but is entitled to an indemnity.

Citations:

Times 02-May-1996, [1996] 2 BCLC 144

Cited by:

CitedDolphin Quays Developments Ltd v Mills and others CA 17-May-2007
The owner had agreed to sell a long lease of an apartment to the defendant. Part of the price was to be by way of set off of an existing debt, but ths was not set out in the contract. The claimant bought the land and the benfit of the contract from . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Northern Ireland, Costs

Updated: 17 May 2022; Ref: scu.77787

AIB Finance Ltd v Debtors: ChD 10 Apr 1997

A Statutory Demand is only finally decided after the failure of a set aside application.

Judges:

Carnwath J

Citations:

Times 10-Apr-1997, [1997] 2 BCLC 354

Statutes:

Rules of the Supreme Court O59R10(2)

Cited by:

Appeal fromAIB Finance Ltd v Debtors (Alsop and Another) CA 11-Mar-1998
The duty of care of a lender to get the best price for repossessed properties, was not broken when the business closed before repossession, and the property was not sold as a going concern. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 17 May 2022; Ref: scu.77680

Kellar v BBR Graphic Engineers (Yorks) Ltd: ChD 2002

The court was asked whether the district judge had applied the right test on an application to set aside a statutory demand because the conclusions of the district judge referred to a real prospect of success, the test used in CPR 24.2, rather than the test of genuine triable issue.
Held: The debate as to whether there is a distinction between the ‘genuine triable issue’ test for cross-claims and ‘real prospect of succeeding on the claim’ (i.e. on the cross-claims) involves a sterile and largely verbal question. Roger Kaye QC noted that the Insolvency Rules did not use the test of real prospect of success, and said: ‘It seems to me therefore to have been plainly intended that what is generally thought to have been a lower threshold than is now applicable to applications and Part 24 of the Civil Procedure Rule is to continue to apply to applications to set aside a statutory demand. This is no doubt because of the serious consequences that a statutory demand which is not set aside must have. It almost invariably and inevitably leads to the presentation of a bankruptcy petition and a bankruptcy order if the statutory demand is not set aside.’

Judges:

Mr Roger Kaye QC

Citations:

[2002] BPIR 544, [2001] 1 All ER (D) 416

Cited by:

CitedBryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
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.

Insolvency

Updated: 17 May 2022; Ref: scu.258442

Highland Engineering Ltd v Thomson: 1972

The liquidation of a company is treated as the equivalent as bankruptcy to prevent the hardship of a debtor who is also a creditor being forced to pay in full, when he will come in only as a creditor for a dividend for his debt as a result of ranking pari passu with the ordinary creditors.

Citations:

1972 SC 87

Jurisdiction:

England and Wales

Cited by:

CitedMelville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company, Insolvency

Updated: 17 May 2022; Ref: scu.251596

In re English, Scottish and Australian Chartered Bank: 1893

Vaughan Williams J said: ‘One knows that where there is a liquidation of one concern the general principle is – ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to govern the liquidation; and let the other courts act as ancillary, as far as they can, to the principal liquidation. But although that is so, it has always been held that the desire to assist in the main liquidation – the desire to act as ancillary to the court where the main liquidation is going on – will not ever make the court give up the forensic rules which govern the conduct of its own liquidation.'(

Judges:

Vaughan Williams J

Citations:

[1893] 3 Ch 385

Cited by:

CitedCape Plc and Others, Re Companies Act 1985 ChD 16-Jun-2006
The court was asked to sanction a scheme of arrangements, and particularly to approve a proposed scheme which itself contained the power to make amendments to the scheme.
Held: The court did have power to sanction such a proposed scheme of . .
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.
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, International

Updated: 17 May 2022; Ref: scu.244199

Re Eichholz: 1959

The court left open the question whether, if the proceedings were brought by a trustee in bankruptcy, a representative creditor had to be joined.

Judges:

Harman J

Citations:

[1959] Ch 708

Cited by:

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

Insolvency

Updated: 17 May 2022; Ref: scu.244177

In re Konigsberg (A Bankrupt): 1989

The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s entitlement to legal professional privilege vests in the trustee so that neither the bankrupt nor the bankrupt’s solicitor can claim privilege under examination.
Peter Gibson J said: ‘Finally I return to the first ground on which Mr Walker relies for his submission that privilege cannot be asserted by Mrs Konigsberg against the trustee. Mr Walker referred me to the following passage in Phipson on Evidence, 13th ed., para.15-11, under the heading ‘Joint retainer’: ‘When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other – e.g. a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though it is otherwise as to communications made to the solicitor in his exclusive capacity.’
Thus if the communication with or from the solicitor in his joint capacity must be disclosed, privilege cannot be asserted by one of the two parties against the other in proceedings against each other. This is established by Shore v. Bedford (1843) 5 M. and G. 271. In that case the plaintiff having a claim against the defendant went with the defendant to the plaintiff’s solicitor, who agreed to write on the defendant’s behalf to a third party. The defendant made a statement in the plaintiff’s presence to the solicitor and the plaintiff subsequently brought an action against the defendant. It was held that the statement was not a privileged communication and questions could be asked of the solicitor’s clerk as to what had been said.’

Judges:

Peter Gibson J

Citations:

[1989] 1 WLR 1257

Jurisdiction:

England and Wales

Citing:

CitedCrescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd 1972
The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to . .

Cited by:

ApprovedFulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
CitedHellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
CitedFord, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Insolvency

Updated: 17 May 2022; Ref: scu.240160

Green v BDO Stoy Hayward LLP: ChD 2 Nov 2005

The liquidator sought production of the company’s books and documents held by the defendant as former auditors of the company.
Held: The power to order discovery could be more freely exercised against an officer of a company than against a third party. Nevertheless a company’s auditors were, for this purpose treated on a par with the officers.

Judges:

Kitchin J

Citations:

Times 07-Nov-2005

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Citing:

CitedIn re British and Commonwealth Holdings plc (Nos 1 and 2) HL 1993
Section 236 extended the power of a liquidator to require from the company’s officers all the documents he would reasonably need in order to fulfil his duties under the Act.
Lord Slynn said: ‘The protection for the person called upon to produce . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 17 May 2022; Ref: scu.235767

Potts v Hickman: HL 1941

The Plaintiff was the landlord of certain premises and had as at 29 September 1938, a right to distrain for unpaid rent in the sum of andpound;15 11s. However, on 20 September, the defendant, as bailiff for Wolverhampton Corporation, had levied on the tenant under a warrant for distress for rates granted by a justice of the peace for the borough on 11 August pursuant to Distress for Rates Act 1849.
Held: The levying of a distress for poor rates under a justice’s warrant was not an ‘execution’ within section 1 Landlord and Tenant Act 1709 (called in this case ‘the Act of Anne’). The issue was whether the distress was an execution within section 1 of the 1709 Act. The section referred to ‘the party at whose suit the execution is sued out’ and to a process to be executed by ‘the sheriff or other officer’ resulting in payment ‘to the plaintiff’. The wording led to the conclusion that, in this context, ‘execution’ referred to the process of enforcing a judgment obtained inter partes. Although the distress warrant was stated to be ‘in the nature of an execution’ it was not a process to enforce payment of a debt ascertained by a previous judgment. As to the possibility of a wider meaning of ‘execution’: ‘The House has been much assisted by the learning and research of counsel on both sides, and we further have the advantage of the full and carefully reasoned judgment of Goddard L.J. delivered on behalf of the Court of Appeal. [see at [1940] 1 KB 38.D] If the test which would determine the present controversy were completely stated by asking whether the lawyers of 1709 would have regarded the levying of a distress of rates as an execution, there would indeed be a great deal to be said for the learned Lord Justice’s conclusion. Ten years before the Act of Anne was passed, Holt C.J. in the deer-stealing case Rex v. Speed had said that ‘when a statute says money ‘shall be levied by distress,’ that is an execution.’ In Hutchins v. Chambers, where the question was whether beasts of the plough were privileged from distress for poor rates and it was decided that they were not, Lord Mansfield quotes with approval the following passage from 3 Salkeld, p. 136: ‘This common-law exemption of utensils, tools, instruments of husbandry etc. from distress holds only in distress for rent arrear, amerciaments etc., but doth not extend to cases where a distress is given in the nature of an execution by any particular statute; as for poor rates.’ ‘Therefore’, adds Lord Mansfield, ‘it is more analogous to an execution than to a distress at common law, and there (in cases of execution) averia carucae may be distrained; although there be other sufficient distress.’

Judges:

Viscount Simon LC

Citations:

[1941] AC 212

Statutes:

Landlord and Tenant Act 1709 1

Jurisdiction:

England and Wales

Cited by:

CitedBrenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 17 May 2022; Ref: scu.228986

In re a Debtor (No 784 of 1991): 1992

The court considered how earlier cases were to be considered given that the 1986 Act was intended to be a complete and self contained code: ‘Those authorities show that, in approaching the language of the 1986 Act, one must pay particular attention to the purposes and policies of its own provisions and be wary of simply carrying over uncritically meanings which had been given to similar words in the earlier Act. It does not, however, mean that the language of the new Act comes to one entirely free of any of the intellectual freight which was carried by words and phrases in earlier bankruptcy or other legislation. Decisions of the court upon the meanings of phrases used in Acts of Parliament may come, in the course of time, to give them the quality of terms of art which Parliament may well be assumed to have intended them to bring with them when used in subsequent legislation. In section 265, for example, terms such as ‘domiciled’, ‘personally present’, ‘ordinarily resident’, have had attributed to them, both in the context of bankruptcy and in that of civil procedure generally, a wealth of refined construction which it is difficult to suppose Parliament did not intend equally to apply when those words were used in the 1986 Act. Is there any reason why that should not apply equally to the words ‘has carried on business’? There does not seem to me to be anything in the policy of the new Act which suggests that in this provision Parliament was intending to give those words a different meaning from those which they had been held to bear under the 1914 Act.’

Judges:

Hoffmann J

Citations:

[1992] Ch 544

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

CitedBrenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 17 May 2022; Ref: scu.228988

Herbert Berry Associates Ltd v Inland Revenue Commissioners: ChD 1976

The collector of taxes distrained on the goods of the company under section 61 TMA 1970 for unpaid taxes and the company entered into a walking possession agreement. Before the collector had sold the goods, and completed the distress, the company entered into voluntary winding-up and a liquidator was appointed. There was a deficiency of andpound;91,000, with preferential creditors of andpound;31,000 and assets of andpound;25,000 including the distrained goods. The goods were later sold with the consent of the collector for andpound;10,500. The collector claimed payment in full of the unpaid tax from the proceeds of sale of the goods. The liquidator contended that the Crown could not assert its right to distrain in order to be paid in full, but by section 319(5) CA 1948 (which concerned preferential payments; the Crown’s claim for unpaid tax was a preferential debt) was only entitled to rank pari passu with other preferential creditors. It was argued that since the Crown was distraining for a preferential debt, it was bound by section 319(5) which provided for pari passu distribution among preferential creditors.
Held: The collector was entitled to distrain by taking possession prior to the date of the winding-up and then to complete it unless there were special reasons rendering it inequitable for him to do so. No distinction was to be drawn in this context between distraint by a landlord and distraint by the collector. The effect of section 319(5) ranking preferential debts pari passu was not a special circumstance which rendered it inequitable for the distress to be completed. The completion of the distress would not be incompatible with the apparently provisions of CA 1948. CA 1948 distinguishes between distress, whether by a landlord or the Crown, and execution. S228 refers to the four remedies of attachment, sequestration, distress and execution. S371(7) deals with distress by landlords or other person and s325 deals with execution or attachment. Templeman said: ‘In my judgment, it is not possible to extract distress by the Crown from distress in general in section 319 and include it somehow or other in section 325, which is not dealing with distress.’
The court rejected the argument that the collector had abandoned or prejudiced his right of distress by accepting a walking possession agreement: ‘In my judgment, the property of a company, which is directed by section 302 [now section 107 IA 1986] to be applied for the benefit of the creditors subject to preferential payments, is the property subject to such rights as were exercised prior to the date of the winding-up. At the date of the winding-up in the present case, the goods were in the possession of the collector, and he had power to sell them in order to discharge unpaid taxes. The property of the company at the date of the winding-up consisted only of its right to any surplus realised on that sale.’

Judges:

Templeman J

Citations:

[1976] 3 All ER 207, [1976] 1 WLR 783, 120 SJ 538

Statutes:

Taxes Management Act 1970 61, Companies Act 1948 319(5)

Jurisdiction:

England and Wales

Citing:

FollowedRe Roundwood Colliery Co 1897
The court discussed the interplay of a distress by the landlord and the later insolvency of the tenant. . .
Not followedMacGregor v Clamp and Son 1914
A distress for taxes was ‘really by way of execution’. . .

Cited by:

At ChDHerbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert BerrySP, Regina (on The Application of) v The Lord Chancellor HL 1977
The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be . .
CitedBrenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
At ChDHerbert Berry Associates Ltd v Inland Revenue Commissioners CA 2-Jan-1976
The word ‘proceedings’ meant the ‘invocation of the jurisdiction of a court by process other than writ’. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 17 May 2022; Ref: scu.228989

Re Roundwood Colliery Co: 1897

The court discussed the interplay of a distress by the landlord and the later insolvency of the tenant.

Citations:

[1897] 1 Ch 371

Jurisdiction:

England and Wales

Cited by:

FollowedHerbert Berry Associates Ltd v Inland Revenue Commissioners ChD 1976
The collector of taxes distrained on the goods of the company under section 61 TMA 1970 for unpaid taxes and the company entered into a walking possession agreement. Before the collector had sold the goods, and completed the distress, the company . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 17 May 2022; Ref: scu.228990

Herbert Berry Associates Ltd v Inland Revenue Commissioners: CA 2 Jan 1976

The word ‘proceedings’ meant the ‘invocation of the jurisdiction of a court by process other than writ’.

Judges:

Russell LJ

Citations:

[1977] 1 WLR 617, [1977] 3 All ER 729, 121 SJ 252

Statutes:

Companies Act 1948

Jurisdiction:

England and Wales

Citing:

At ChDHerbert Berry Associates Ltd v Inland Revenue Commissioners ChD 1976
The collector of taxes distrained on the goods of the company under section 61 TMA 1970 for unpaid taxes and the company entered into a walking possession agreement. Before the collector had sold the goods, and completed the distress, the company . .
CitedValensi v British Radio Corporation CA 1973
The court considered the test for deciding what degree of knowledge, skill and perseverance the skilled man was assumed to have as a ground for revocation of a patent on the associated basis. There had been a mistake in the specification of the . .

Cited by:

At CAHerbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert BerrySP, Regina (on The Application of) v The Lord Chancellor HL 1977
The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 17 May 2022; Ref: scu.228992

In re a Debtor (No 32 SD 1991): ChD 1993

Judges:

Millett J

Citations:

[1993] 1 WLR 314

Statutes:

Insolvency Act 1986 375

Jurisdiction:

England and Wales

Cited by:

CitedPapanicola v Humphrys and Others ChD 14-Mar-2005
The bankrupt had continued to run his restaurant for a year, by having another company collect his receipts for him. The trustee had obtained a declaration that the sum was held in trust for the bankrupt’s estate. The director of the company who had . .
CitedThe Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 17 May 2022; Ref: scu.226001

In re Saunders (A Bankrupt): ChD 1997

Very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity. Leave could in appropriate circumstances be granted after the event notwithstanding the proceedings had been commenced without leave. The words used in s.130(2) of the Insolvency Act 1986 were, in their historical context, capable of bearing more than one meaning and the court should give effect to the meaning which best gave effect to the statutory purpose rather than frustrating it.

Judges:

Lindsay J

Citations:

[1997] Ch 60

Statutes:

Insolvency Act 1986 130(2) 285

Citing:

ConsideredRendall v Blair 1890
Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity.
Bowen LJ said: ‘this section is not framed in the way in which sections are framed . .

Cited by:

CitedSeal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
CitedSeal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
CitedAdorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 17 May 2022; Ref: scu.226025

Freightex Ltd v International Express Co Ltd: CA 15 Apr 1980

Dunn L.J: ‘I do not think that a liquidator or an assignee from a liquidator should be put on terms either by way of security for costs or otherwise as a condition of enforcing an assigned claim.’ the other court members thought it was inappropriate to impose such a condition in that particular case.

Judges:

Dunn LJ, Stephenson L.J. and Sir Stanley Rees

Citations:

Transcript No. of 1980, Unreported, 15 April 1980

Jurisdiction:

England and Wales

Cited by:

CitedNorglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 16 May 2022; Ref: scu.223199

Re a Debtor: ChD 1997

The creditor appealed the decision to set aside a statutory demand as statute barred.
Held: The appeal was dismissed. Bankruptcy proceedings based on a statutory demand for moneys due under a previous default judgment constituted ‘an action upon a judgment’ within s24(1). Insolvency proceedings constituted a fresh action or proceeding newly brought, of the kind described in Lamb, rather than a proceeding under the judgment previously obtained. Bankruptcy proceedings were not, the judge held, a method of, nor were they akin to, enforcing or executing a judgment outside s24(1). As more than 6 years had elapsed since the default judgment became enforceable, bankruptcy proceedings based on it in the statutory demand would be statute barred by s24(1). It was held that the statutory demand had been rightly set aside by the district judge.

Judges:

Baker J

Citations:

[1997] Ch 310

Statutes:

Limitation Act 1980 24(1)

Cited by:

CitedRidgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
DisapprovedRidgeway Motors (Isleworth) Ltd v Altis ChD 21-May-2004
The company sought to strike out a winding up petition presented by the respondents, saying a winding up petition was by way of an action, and was barred by statute after six years.
Held: A winding up petition was not an action within the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Limitation

Updated: 16 May 2022; Ref: scu.223039

In re Maxwell Communications plc: ChD 1993

It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one’s own disadvantage, particularly by analogy with cases on set-off in insolvency.
Held: This was not the law. There was no reason why a particular creditor should not waive his right to prove altogether, or save to the extent of assets remaining after another creditor is satisfied, and that he could do this either in the insolvency or in advance of it.
Vinelott J explained his decision in In re British and Commonwealth plc (No 3): ‘I took the view that to the extent that the assets of the company were insufficient to meet the liabilities to unsecured creditors, other than the holders of the loan stock, the holders of the loan stock had no interest in the assets of the company and no right to vote at a meeting of unsecured creditors, that in the very unlikely, indeed, merely theoretical possibility that the realisation of the company’s assets would suffice to meet the claims of the scheme creditors, the rights of the holders of the unsecured loan stock would be unaffected by the scheme; and that in these circumstances the liquidator [sic – he must have meant administrator] could properly call a meeting of the scheme creditors alone, and if the scheme of arrangement was approved, apply to the court to sanction the scheme.’

Judges:

Vinelott J

Citations:

[1993] 1 WLR 1402

Jurisdiction:

England and Wales

Citing:

CitedIn re British and Commonwealth plc (No 3) ChD 1992
Bonds were subordinated in a winding up, and the company was in administration in which the administrators were proposing a scheme of arrangement. The judge was invited to apply the Tea Corporation principles in order to arrive at a conclusion that . .

Cited by:

CitedMytravel Group Plc, Re Companies Act 1985 ChD 24-Nov-2004
The company sought approval of a proposed reconstruction under the section.
Held: Approval could not be given. To count as a reconstruction two principal qualities were required. The business carried on should be the same or similar, and those . .
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 . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 16 May 2022; Ref: scu.220257

In re Parkdawn Ltd: ChD 1993

The section provided sufficient power to allow a court to appoint a new liquidator in the case of a company’s liquidation. Though there is no express power, one is assumed within the insolvency rules.

Judges:

Harman J

Citations:

Unreported, 1993

Statutes:

Incolvency Act 1986 393, Insolvency Rules 4.116(6)

Jurisdiction:

England and Wales

Cited by:

CitedIn Re Sutton (Removal of Liquidator) ChD 17-Oct-1997
The insolvency practitioner held many appointments. His partnership in a large firm of accountants ended suddenly. He did not have the resources to handle the cases, and nor could acceptable arrangements be made for him to have access to the related . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 16 May 2022; Ref: scu.221557

Re Bullard and Taplin Ltd: ChD 1996

Tne question of whether there was at any time ‘pending court proceedings’ was answered by asking if there existed a court file. The section empowered a court itself to appoint another trustee in bankruptcy. Section 41 of the 1984 Act could be used by the HighCourt to take some control over proceedings for an individual voluntary arrangement in the County Court.

Judges:

Knox J

Citations:

[1996] BCC 973

Statutes:

Insolvency Act 1986 303, County Courts Act 1984 41(1)

Cited by:

CitedQuickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
CitedIn Re Sutton (Removal of Liquidator) ChD 17-Oct-1997
The insolvency practitioner held many appointments. His partnership in a large firm of accountants ended suddenly. He did not have the resources to handle the cases, and nor could acceptable arrangements be made for him to have access to the related . .
CitedIn Re A and C Supplies Limited ChD 17-Oct-1997
Applications were made for the removal of a liquidator from several appointments in corporate nd individual insolvencies. He had been a partner in a firm and that had ceased in a way which left it impossible to work with his former partners to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 16 May 2022; Ref: scu.216396

In re British and Commonwealth plc (No 3): ChD 1992

Bonds were subordinated in a winding up, and the company was in administration in which the administrators were proposing a scheme of arrangement. The judge was invited to apply the Tea Corporation principles in order to arrive at a conclusion that the bondholders would recover nothing and so would not have the right ot vote at a meeting to consider the relevant scheme. He drew attention to the fact that in the Tea Corporation case there was a finding that the assets would not suffice to meet the claims of shareholders and that there was a concession to that effect in Oceanic. He went on to say: ‘In the instant case the trustee does not concede that the proceeds of realisation of the company’s assets, whether in the course of administration or in the course of winding up, would inevitably be insufficient to meet the claims of scheme creditors . . .The evidence relied on by the trustee is also criticised on what appears to me to be cogent grounds in evidence filed on behalf of he administrators. The claim that there is even a remote possibility that sufficient might be realised in the course of administration or in winding up to meet the claims of the scheme creditors in full seems to me to verge on the fanciful. However, in the absence of any concession, I cannot on this application proceed on the assumption that there is no possibility that the claims of the scheme creditors will be met in full.’ However, despite his unwillingness to proceed on that assumption, the learned judge still came to the conclusion that the bondholders’ consent was not required, and at court concluded that the bondholders had no interest in the assets of the company: ‘It follows to the extent that the assets of the company are insufficient to meet the claims of scheme creditors, the holders of CULS have no interest in the assets of the company.’

Judges:

Vinelott J

Citations:

[1992] BCC 58, [1992] BCLC 322, [1992] 1 WLR 672

Jurisdiction:

England and Wales

Citing:

CitedRe Tea Corporation CA 1904
A scheme was proposed in a liquidation and a meeting of, inter alia, ordinary shareholders was proposed, who were to be given shares in the new company in place of their shares in the old, so to that extent they were affected by the scheme. The . .

Cited by:

CitedMytravel Group Plc, Re Companies Act 1985 ChD 24-Nov-2004
The company sought approval of a proposed reconstruction under the section.
Held: Approval could not be given. To count as a reconstruction two principal qualities were required. The business carried on should be the same or similar, and those . .
CitedIn re Maxwell Communications plc ChD 1993
It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one’s own disadvantage, particularly by analogy with cases on set-off in . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 16 May 2022; Ref: scu.220256

Banque Indosuez v Ferromet Resources: 1993

There is a general principle in favour of giving judicial assistance to foreign insolvency proceedings by preventing their disruption by the actions of individual creditors.

Judges:

Hoffmann J

Citations:

[1993] BCLC 112

Jurisdiction:

England and Wales

Cited by:

CitedMazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 16 May 2022; Ref: scu.199747

In re Oak Pits Colliery Co: CA 1882

The court examined the basis of the rule that the court has a discretion to order a liquidator to pay the full rent of a property he retained: ‘When the liquidator retains property for the purpose of advantageously disposing of it, or when he continues to use it, the rent of it ought to be regarded as a debt contracted for the purposes of winding up the company, and ought to be paid in full like any other debt or expense properly incurred by the liquidator for the same purpose . .’ It would be just and equitable, in these circumstances to treat the rent liability as if it were an expense of the winding up and to accord it the same priority.

Judges:

Lindley LJ

Citations:

(1882) 21 Ch D 322

Jurisdiction:

England and Wales

Cited by:

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

Insolvency, Landlord and Tenant

Updated: 16 May 2022; Ref: scu.190097