Category: Insolvency

In Re Bellmex International Ltd: ChD 23 Mar 2000

The liquidator of a company in a creditors voluntary liquidation, and which had been importing cigarettes received a proof of debt from a company in Zimbabwe. The liquidator suspected that the proof relied upon a false declaration in denying that true country of origin of the cigarettes to avoid import duty, and sought an order for the examination of the company’s director and its books.
Held: The court said that inspection was unnecessary. The liquidator should rather reject the proof if he believed it to be incorrect or doubtful, leaving the claimant to appeal, and prove his debt fully. In this case the director had offered to be interviewed, and the likely sums to be realised were nil. An order under section 236 should only be made it it was clearly necessary to make one. An order for costs on an indemnity basis was made against the liquidator.

Judges:

Evans-Lombe J

Citations:

Gazette 23-Mar-2000, Times 31-Mar-2000

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Citing:

Cited – Re Bank of Credit and Commerce International Sa ChD 3-Jan-1994
Cross examination on an affidavit requested despite there being no extraneous evidence. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 July 2022; Ref: scu.81743

In Re Brefec Installations Ltd (In Liquidation): ChD 18 May 2000

A company entered into a voluntary arrangement, but only maintained payments at the expense of incurring substantial further post-CVA losses. The liquidators sought directions for payment of undistributed sums received by them. A standard form agreement was in place under which it could not be said that any such sum could be held on trust for the company or its creditors.

Citations:

Gazette 18-May-2000

Jurisdiction:

England and Wales

Insolvency

Updated: 18 July 2022; Ref: scu.81756

In Re Dicksmith (Manufacturing) Ltd (In Liquidation): ChD 7 Jul 1999

The power of a liquidator in voluntary liquidation proceedings, to apply to the court to be allowed to exercise powers normally reserved to a liquidator appointed by the court, extended beyond matters such as litigation to protect assets and ensure pari passu distribution among creditors. The power could also be used to allow an application to stay proceedings.

Citations:

Times 07-Jul-1999

Statutes:

Insolvency Act 1986 112

Jurisdiction:

England and Wales

Insolvency

Updated: 18 July 2022; Ref: scu.81847

In Re FJL Realisations Ltd: ChD 2 Mar 2000

Administrators took on new employees during the period of administration, but when it came to an end, they were unable to pay the PAYE and NIC for the employees.
Held: The statute gave special priority to debts incurred under new contracts. The liability for PAYE fell under that category, and so did liability for NIC, and these took precedence over the expenses of administration.

Citations:

Gazette 02-Mar-2000, Times 21-Mar-2000

Statutes:

Insolvency Act 1986 19(4) 19(5) 19(6)

Jurisdiction:

England and Wales

Citing:

Appealed to – In Re FJL Realisations Ltd CA 2-Aug-2000
Administrators took on new employees during the period of administration, but when it came to an end, they were unable to pay the PAYE and NIC for the employees.
Held: The statute gave special priority to debts incurred under new contracts. . .

Cited by:

Appeal from – In Re FJL Realisations Ltd CA 2-Aug-2000
Administrators took on new employees during the period of administration, but when it came to an end, they were unable to pay the PAYE and NIC for the employees.
Held: The statute gave special priority to debts incurred under new contracts. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 July 2022; Ref: scu.81886

Rose v AIB Group (UK) plc and Another: ChD 9 Jun 2003

The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it had acted already in such a way as to put its own position at risk, and that the claim in restitution should be denied.
Held: The court was required to try to achieve equal payment pari passsu of the debts. The bank was entitled to an order validating payments it had made prior to presentation. For payments made subsequently, the defence of restitution might be available according to the facts of the case allowing for good and bad faith. Here the alleged change of position resulted form the bank’s own act, not on any assessment of the validity of the credits.

Judges:

Nicholas Warren QC

Citations:

Times 08-Jul-2003, Gazette 31-Jul-2003

Statutes:

Insolvency Act 1986 127

Jurisdiction:

England and Wales

Citing:

Cited – Dextra Bank and Trust Company Limited v Bank of Jamaica PC 26-Nov-2001
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica’s foreign exchange control regulations. It was asserted that by presenting the cheque used in the . .
Cited – Bank of Ireland v Hollicourt (Contracts) Limited CA 20-Oct-2000
A bank continued to pay on cheques presented to it against the company’s bank account even after the presentation of a petition for bankruptcy. The liquidator sought recovery of the amounts paid from the bank as well as the payees. It was held that . .
Cited – Re S A and D Wright Ltd, Denney v John Hudson and Co Ltd CA 1992
Fox LJ said: ‘A disposition carried out in good faith in the ordinary course of business at a time when the parties were unaware that a petition had been presented would usually be validated by the court unless there is ground for thinking that the . .
Cited – In re Gray’s Inn Construction Co Ltd CA 1980
After the presentation of a petition for the winding up of the company moneys were paid in and out of the company’s bank account which was overdrawn. The liquidator issued a summons for a declaration that the amounts credited and/or debited to the . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 17 July 2022; Ref: scu.184532

Ayerst (Inspector of Taxes) v C and K (Construction) Ltd: HL 1976

A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its assets are held on terms that they must be applied in accordance with that statutory insolvency regime.
Lord Diplock spoke of the use of the expression ‘trust’ and ‘trust property’ in reference to the assets of a company in liquidation: ‘All that was intended to be conveyed by the use of the expression ‘trust property’ and ‘trust’ in these and subsequent cases (of which the most recent is Pritchard v. M.H. Builders (Wilmslow) Limited [1969] 1 WLR 409) was that the effect of the statute was to give to the property of a company in liquidation that essential characteristic which distinguished trust property from other property, viz., that it could not be used or disposed of by the legal owner for his own benefit, but must be used or disposed of for the benefit of other persons.’
Lord Diplock referred to the legal ownership of property subject to a trust as held by the trustee ‘not for his own benefit but for the benefit of the cestui que trust or beneficiaries’, but went on to say that: ‘Upon the creation of a trust in the strict sense as it was developed by equity the full ownership in the trust property was split into two constituent elements … the ‘legal ownership’ in the trustee, what came to be called the ‘beneficial ownership’ in the cestui que trust.’

Judges:

Lord Diplock

Citations:

[1976] AC 167

Jurisdiction:

England and Wales

Cited by:

Cited – Buchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – Belmont 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 . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Trusts

Updated: 17 July 2022; Ref: scu.194248

Bristol Airport Plc and Another v Powdrill and Others: CA 21 Dec 1989

An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to allow seizure.
Held: The definition of property in the 1982 Act was wide enough to include leased property. The planes were capable of being seized to create a lien. The exercising of a lien was taking action to enforce a security, and therefore required the court’s consent. The court had correctly exercised its discretion not to allow seizure to allow the orderly conduct of the administration of the company.
Sir Nicolas Browne-Wilkinson VC said: ‘Although a chattel lease is a contract, it does not follow that no property lease is created in the chattel. The basic equitable principle is that if, under a contract, A has certain rights over property as against the legal owner, which rights are specifically enforceable in equity, A has an equitable interest in such property. I have no doubt that a court would order specific performance of a contract to lease an aircraft, since each aircraft has unique features peculiar to itself. Accordingly in my judgment the ‘lessee’ has at least an equitable right of some kind in that aircraft which falls within the statutory definition as being some ‘description of interest … arising out of, or incidental to’ that aircraft.’

Judges:

Sir Nicolas Browne-Wilkinson VC, Woolf and Staughton L.JJ.

Citations:

[1990] 2 WLR 1362, [1990] Ch 744, [1990] BCLC 585

Links:

lip

Statutes:

Civil Aviation Act 1982 88(1), Insolvency Act 1986 11(3)

Jurisdiction:

England and Wales

Citing:

Cited – Air Ecosse Ltd v Civil Aviation Authority OHCS 1987
. .
Cited – Channel Airways Ltd v Manchester Corporation 1974
There are many species of lien which do not depend on possession, including for example certain equitable liens. The statutory right of detention but conferred by a Private Act was not strictly a lien. . .
Cited – Havelet Leasing Ltd v Cardiff-Wales Airport Ltd 29-Jun-1988
In order to exercise the statutory power of detention of an aircraft, the airport had to do some overt act evidencing the act of detention. Detention by an airport authority must be begun by some overt act. Such act need take no particular form. A . .
Cited – Quazi v Quazi HL 1979
The husband had pronounced a talaq in Pakistan, in accordance with the 1961 Muslim Family Ordinance. The question was whether the English court had jurisdiction on the wife’s petition to dissolve the marriage and make consequential orders relating . .
Cited – Corps v Owners of the Paddle Steamer ‘The Queen of the South’ 1968
Among the peope who might intervene on a ship’s arrest are the harbour authority itself claiming statutory rights of detention and sale. . .
Cited – Smith (a bankrupt) v Braintree District Council HL 1989
The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.

Cited by:

Applied – AIG Europe S A v QBE International Insurance Ltd ComC 3-May-2001
A re-insurance contract incorporated terms from the main contract. When asked to construe the incorporation of a clause granting exclusive jurisdiction. In doing so, it was held, that under the Brussels Convention the court had to look to the . .
Cited – Commissioners 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 . .
Cited – ETI Euro Telecom International Nv v Republic of Bolivia and Another CA 28-Jul-2008
The parties were involved in an international investment dispute arbitration. An injunction had been sought to prevent repatriation of assets to Bolivia.
Held: The international system of arbitration was not subject to any national law and did . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Transport, Insolvency, Company

Updated: 17 July 2022; Ref: scu.174712

Macmillan Inc v Bishopsgate Investment Trust Plc: Chd 17 Mar 1993

Evidence given to a liquidator was not discoverable in civil proceedings.

Citations:

Gazette 17-Mar-1993

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Cited by:

Appeal from – Macmillan Inc v Bishopsgate Investment Trust Plc CA 1-Sep-1993
A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
Judge’s discretion not to order production not to be interfered with. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Insolvency

Updated: 17 July 2022; Ref: scu.83282

Azuonye v Kent: CA 19 Jul 2019

The Court was asked whether the liability of a debtor for future payments under an income payments order (IPO) made in the debtor’s bankruptcy ranks as a provable debt in a later bankruptcy of the same debtor. The answer is provided by section 335 of the Insolvency Act 1986 (the Act) if the later bankruptcy order is made before the debtor is discharged from the earlier bankruptcy. In that case, the IPO becomes an asset of the later bankruptcy and is fully enforceable by the trustee in the later bankruptcy for the benefit of that bankruptcy. The liability for future payments under the IPO is not therefore a provable debt in the later bankruptcy. However, there is no express provision dealing with the position if, as in this case, the later bankruptcy order was made after the debtor was discharged from the earlier bankruptcy.

Judges:

Lord Justice David Richards

Citations:

[2019] EWCA Civ 1289

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 17 July 2022; Ref: scu.639780

Fraser Turner Ltd v Pricewaterhousecoopers Llp and Others: CA 19 Jul 2019

This appeal raises questions of both contractual interpretation and the duties owed by administrators at common law and under paragraph 74 of Schedule B1 to the Insolvency Act 1986

Judges:

Sir Geoffrey Vos, Chancellor of the High Court

Citations:

[2019] EWCA Civ 1290

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 17 July 2022; Ref: scu.639782

Giles v Rhind and Another: ChD 28 Mar 2007

Application for permission to amend the particulars of claim in proceedings brought to set aside a transaction under section 423 of the Insolvency Act 1986 or to declare it a sham.

Judges:

Richards J

Citations:

[2007] EWHC 687 (Ch), [2007] Bus LR 1470, [2007] 2 BCLC 531, [2007] BPIR 713, [2007] BPIR 713

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Giles v Rhind CA 17-Oct-2002
An action by a company under a shareholder’s agreement was compromised. The other shareholder now sought to commence an action against the party in breach for his personal losses. The defendant argued that the company’s compromise was binding also . .

Cited by:

Appeal from – Giles v Rhind CA 28-Feb-2008
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 17 July 2022; Ref: scu.341733

Wicks v Russell and Another: ChD 7 Nov 2008

A challenge was made to the appointment of a receiver in the administration of the deceased’s insolvent estate.

Judges:

Purle QC J

Citations:

[2008] EWHC 2713 (Ch), [2009] BPIR 194

Links:

Bailii

Statutes:

Administration of Insolvent Estates of Deceased Persons Order 1986

Jurisdiction:

England and Wales

Insolvency, Wills and Probate

Updated: 17 July 2022; Ref: scu.278311

French v Barcham and Another: ChD 4 Jul 2008

The court was asked the extent to which a beneficial tenant in common who continues in occupation of a property following the bankruptcy of the other beneficial tenant in common ought to compensate the bankrupt’s estate for that continued occupation.
Held: The 1996 Act did not provide an exhaustive regime for determining rights as between co-owners, and the judge had been wrong to require the trustee in bankruptcy to provide some basis under the Act to make his claim. If necessary the court could look to its equitable jurisdiction to find a basis for such a claim.

Judges:

Blackburne J

Citations:

[2008] EWHC 1505 (Ch), Times 24-Jul-2008

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 12 815

Jurisdiction:

England and Wales

Citing:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 17 July 2022; Ref: scu.270630

A Company: ChD 19 Jan 2005

Application by the company for an injunction restraining the Respondent, Publishing 2000 Group Limited from presenting a winding up petition against the company in reliance on a statutory demand.

Judges:

Rimer J

Citations:

[2005] EWHC 3551 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 17 July 2022; Ref: scu.270425

Lightfoot v The Lord Chancellor: CA 23 Jul 1999

The claimant wanted to make a claim for her own bankruptcy, but could not do so without finding the court fees. She challenged the refusal of the defendant to give her exemption.
Held: The attempt failed. The absolute requirement of a fee (without any provision for a discretionary power of waiver) was entirely in accord with the statutory bankruptcy scheme and Parliamentary intention. Thus inability to pay on the part of some petitioners did not invalidate the scheme.

Judges:

Simon Brown LJ, Chadwick LJ, Rattee J

Citations:

[1999] EWCA Civ 3025, [2000] HRLR 33, [2000] QB 597, [2000] BPIR 120, [1999] 4 All ER 583, [2000] BCC 537, [2000] 2 WLR 318

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Human Rights

Updated: 15 July 2022; Ref: scu.268838

Re Arrows Ltd No 4: HL 1995

The Court of Appeal had allowed an appeal from the judge who had directed that the transcripts of examinations of a director of an insolvent company under section 236 on the Director of the Serious Fraud Office undertaking that the transcripts would not be used save in the circumstances specified in section 2(8) of the 1987 Act. The result was that the transcripts should be made available to the director without condition.
Held: The appeal was dismissed.
Lord Browne-Wilkinson said: ‘The inevitable effect of a witness in civil proceedings claiming the privilege against self-incrimination is to deprive the opposite party and the court of evidence relevant to the dispute under consideration. Until recently, this has not given rise to much litigation. But the recent upsurge of financial fraud, particularly in relation to companies, has raised in an acute form the conflict between the witness’s basic right to rely on the privilege on the one hand and the public interest in successfully pursuing and recovering the fruits of such fraud.’ and ‘Only Parliament can weigh the conflicting public interests as between the demands of justice to the accused, the need to obtain the information for the purposes of civil proceedings (including investigatory proceedings) and the public interest in the successful prosecution of those guilty of fraud.’
Lord Browne-Wilkinson said: ‘In my view, where information has been obtained under statutory powers the duty of confidence owed on the Marcel principle cannot operate so as to prevent the person obtaining the information from disclosing it to those persons to whom the statutory provisions either require or authorise him to make disclosure.’

Judges:

Lord Browne-Wilkinson

Citations:

[1995] 2 AC 75

Statutes:

Insolvency Act 1986 236, Criminal Justice Act 1987 2(8)

Jurisdiction:

England and Wales

Citing:

Appeal from – Re Arrows Ltd (No 4) CA 8-Apr-1993
A Civil Court cannot stop the Serious Fraud Office using evidence which had been gathered under compulsion during Insolvency interviews under s236. Any element of confidentiality was overriden. . .
Cited – Marcel v Commissioner of Police of the Metropolis CA 1992
A writ of subpoena ad duces tecum had been issued requiring the production by the police for use in civil proceedings of documents seized during a criminal fraud investigation. The victim of the fraud needed them to pursue his own civil case.

Cited by:

Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Cited – Ingenious Media Holdings Plc and Another, Regina (on The Application of) v Revenue and Customs SC 19-Oct-2016
The tax payer complained that the Permanent Secretary for Tax had, in an off the record briefing disclosed tax details regarding a film investment scheme. Despite the off the record basis, details were published in a newspaper. His claims had been . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Human Rights

Updated: 15 July 2022; Ref: scu.242454

In re Jeffrey S Levitt Ltd: ChD 1992

The provisions of the two Acts are intended to be part of the same statutory scheme and are to be read in combination.

Judges:

Vinelott J

Citations:

[1992] Ch 457

Statutes:

Company Directors’ Disqualification Act 1986, Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Official Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 15 July 2022; Ref: scu.186358

First Independent Factors and Finance Ltd v Mountford: ChD 23 Apr 2008

The claimant factors sought to attach personal liability to the debts of the company to the defendant director saying that he was in breach of section 216.

Judges:

Lewison J

Citations:

[2008] EWHC 835 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 216

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 14 July 2022; Ref: scu.267061

Dougan’s Trustee v Dougan: HL 14 Feb 1902

Two brothers A and B acquired on their mother’s death vested rights each to an equal share in the trust-estates under the marriage-contract of their parents and the will of their father. After their mother’s death B, being in embarrassed circumstances, approached A with a view to a sale of his interest. B ultimately assigned his share in the trust-estates to A in consideration of A undertaking to pay certain debts due by B and to pay pounds 450 to B in cash. When the negotiations for this bargain were proceeding A had before him a valuation of his own share of the trust-estate which he had obtained for his own purposes, and which showed the value of each share to be such that if the valuation was correct A would make a profit of pounds 600 upon his transaction with B. This valuation was not disclosed by A to B. A admitted that he expected when carrying out the transaction to make a profit of a few hundred pounds; and in his cross-examination said he did not see that ‘fairness had anything to do with it.’ After receiving the pounds 450 B left the country, and thereafter his estates were sequestrated.
In an action brought by B’s trustee in bankruptcy against A, held ( aff. judgment of the Second Division) that, on payment of pounds 450 to A, the trustee in bankruptcy was entitled to reduction of the assignation.

Judges:

Lord Chancellor (Halsbury), Lord Ashbourne, Lord Macnaghten, Lord Shand, Lord Brampton, and Lord Lindley

Citations:

[1902] UKHL 383, 39 SLR 383

Links:

Bailii

Jurisdiction:

England and Wales

Trusts, Insolvency

Updated: 14 July 2022; Ref: scu.630786

Velasco Navarro (Social Policy): ECJ 17 Jan 2008

ECJ Social policy Protection of workers in the event of insolvency of their employer Directive 80/987/EEC amended by Directive 2002/74/EC Direct effect Compensation for unfair dismissal agreed under a judicial conciliation settlement Payment guaranteed by the guarantee institution Payment conditional upon the adoption of a judicial decision.

Judges:

K. Lenaerts, P

Citations:

C-246/06, [2008] EUECJ C-246/06

Links:

Bailii

European, Employment, Insolvency

Updated: 13 July 2022; Ref: scu.263964

The Queen and Secretary of State for Trade and Industry ex parte Kenneth Reginald Bagnall QC: Admn 22 Feb 2000

Application by Mr Bagnall for permission to apply for an order quashing on public law grounds a decision by the Secretary of State notified to Mr Bagnall on the 1st October 1999 to exercise the power conferred by Section 296 of the Insolvency Act 1986 to appoint Mrs Jackson as his trustee in bankruptcy.

Judges:

Lightman J

Citations:

[2000] EWHC Admin 297

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 13 July 2022; Ref: scu.140111

Re NMUL Realisations Ltd: ChD 20 Jan 2021

the correct approach the Court ought to adopt when dealing with potential defects in the procedure for appointing administrators out of court – inappropriate filing of a notice of satisfaction of a qualifying floating charge on behalf of the Company that created the charge to secure its borrowing in circumstances where in fact, at all material times, a substantial balance remained due

Judges:

Deputy Insolvency and Companies Court Judge Frith

Citations:

[2021] EWHC 94 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 13 July 2022; Ref: scu.657516

Skjevesland v Geveran Trading Company Limited: ChD 2002

The registrar had decided that the debtor’s centre of main interests was situated in Switzerland.
Held: Article 3 of Regulation (EC) 1346/2000 did not displace the bankruptcy jurisdiction which (as the registrar found) the High Court would otherwise have under section 265 of the Insolvency Act 1986.

Judges:

Judge Howarth

Citations:

[2002] EWHC 2898 (Ch)

Jurisdiction:

England and Wales

Cited by:

Cited – In re Daisytek-ISA Ltd and others 2004
The court was asked where the centre of main interests of French and German subsidiaries of ISA International plc was situated for the purposes of article 3.1 of the Regulation.
Held: After referring to recital (13) to the Regulation, to the . .
Appeal from – Skjevesland v Geveran Trading Co Ltd CA 30-Oct-2002
The debtor’s wife was personally acquainted with counsel for the petitioner in his bankruptcy examination. He sought that it be set aside.
Held: Whereas a judge had a duty to be independent of the parties, no such duty fell on counsel. A court . .
Cited – Shierson v Vlieland-Boddy CA 27-Jul-2005
The debtor claimed that he could not be served with an insolvency petition, being resident in Spain.
Held: The court was to look to where was the centre of his main interests to determine whether to open insolvency proceedings. On that basis, . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 July 2022; Ref: scu.249852

Fender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc: ChD 26 Sep 2008

The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been executed.

Citations:

[2008] EWHC 2242 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lady Hood of Avalon v Mackinnon 1909
Lady Hood made an appointment in favour of her elder daughter, in order to place her in the same position as her younger daughter to whom she had already made large appointments. But in doing so she (and her solicitor) had forgotten that she had, . .
Approved – Ogden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased ChD 25-Jan-2008
A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison . .
Cited – Allnutt and Another v Wilding and others; Re Strain (deceased) CA 3-Apr-2007
The trustees of a discretionary settlement requested its rectification on the basis that the now deceased settlor’s solicitor had mistakenly not appreciated the need to confer interests in possession on the beneficiaries, with the consequence that . .
Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 13 July 2022; Ref: scu.276678

St Paul Travelers Insurance Company Ltd v Dargan and Another; Re Ballast plc: ChD 15 Dec 2006

Citations:

[2006] EWHC 3189 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Burnand v Rodocanachi HL 1882
The respondents took valued insurance, including war risks, on a cargo which was later destroyed by the Confederate cruiser Alabama. The underwriters paid to the respondents as on an actual total loss the valued amounts, which were less than the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 July 2022; Ref: scu.247406

Demite Ltd v Protec Health Ltd: ChD 1998

A sale by a receiver potentially fell within the scope of section 320. The receivers were the agents of the company and their act was the company’s act. The section expressly excluded from its scoe an arrangement made in the course of a winding up (other than a members’ voluntary winding up). In the light of this express exclusion there was no scope for an implied exclusion applicable to a sale by a receiver. A debenture holder could exercise his own power of sale, in which case the sale would be made by him in his own right, and not through the medium of a receiver.

Judges:

Park J

Citations:

[1998] BCC 639

Statutes:

Companies Act 1985 320

Jurisdiction:

England and Wales

Cited by:

Appeal from – Demite Limited v Protec Health Limited; Dayman and Gilbert CA 24-Jun-1999
. .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 13 July 2022; Ref: scu.230291

HM Revenue and Customs v Holland and Another: ChD 24 Jun 2008

The Revenue sought to recover from the defendant substantial sums in respect of allegedly unlawful dividends paid from an insolvent company. They said that the defendant and his wife were de facto directors.
Held: Claims agains the second defendant were dismissed. Claims for early periods were rejected under section 727 of the 1985 Act, but succeeded otherwise. The defendant had been guilty of misfeasance and breach of duty in causing their payment.

Judges:

Mark Cawson QC

Citations:

[2008] EWHC 2200 (Ch), [2008] STC 3142, [2008] 2 BCLC 613, [2009] BCC 37, [2008] STI 1642, [2009] Bus LR 1

Links:

Bailii

Statutes:

Insolvency Act 1986 212, Companies Act 1985 727

Jurisdiction:

England and Wales

Cited by:

Appeal from – Holland v Revenue and Customs and Another CA 2-Jul-2009
The appellant supported IT workers. Through his own company, he set up companies in which his company was a director, and which companies in turn employed the IT workers securing substantial savings in higher rate Corporation Tax.
Held: The . .
At First Instance – Holland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Corporation Tax, Company

Updated: 13 July 2022; Ref: scu.276668

Secretary of State for Work and Pensions v Balding: CA 13 Dec 2007

The Secretary of State appealed a decision that its reclaim of overpayments of benefit were no longer possible after the discharge from insolvency of the claimant. The overpayment had been reclaimed before bankruptcy.
Held: At the time of the bankruptcy the debt was not a contingent debt. The secretary of state had demanded its repayment, and it whether it was contingent could not be dependent on which method of recovery was later chosen.

Judges:

Mummery, Thomas, Lloyd LJJ

Citations:

[2007] EWCA Civ 1327, [2008] 1 WLR 564, [2008] 3 All ER 217, [2007] BPIR 1669

Links:

Bailii

Statutes:

Social Security Administration Act 1992

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Approved – Secretary 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.

Benefits, Insolvency

Updated: 12 July 2022; Ref: scu.262113

Haines v Hill and Another: CA 5 Dec 2007

On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer aside as a transaction at an undervalue.
Held: The starting point is consideration of the rights of spouses for financial provision and property adjustment orders under the 1973 Act.
Held: ‘The order of the court quantifies the value of the applicant spouse’s statutory right by reference to the value of the money or property thereby ordered to be paid or transferred by the respondent spouse to the applicant. In the case of such an order, whether following contested proceedings or by way of compromise, in the absence of the usual vitiating factors of fraud, mistake or misrepresentation the one balances the other. But if any such factor is established by a trustee in bankruptcy on an application under s.339 then it will be apparent that the prima facie balance was not the true one and the transaction may be liable to be set aside.’

Judges:

The Chancellor

Citations:

[2007] EWCA Civ 1284

Links:

Bailii

Statutes:

Insolvency Act 1986 339, Matrimonial Causes Act 1973 39

Jurisdiction:

England and Wales

Citing:

Cited – Re Paramount Airways Ltd (In Administration) CA 8-Apr-1992
It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
Cited – Mountney v Treharne CA 8-Aug-2002
In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been . .
Cited – Harman v Glencross 1986
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was . .
Cited – In Re Pope ex parte Dicksee 1908
In a post-nuptial settlement, the wife had given up all her rights in return for a transfer to her of property from her husband who was later made bankrupt.
Held: Sir Herbert Cozens-Hardy MR said: ‘I am unable to adopt the view that there must . .
Cited – Re Kumar (A Bankrupt), ex parte Lewis v Kumar 1993
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had . .
Cited – In re Abbott ChD 1983
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – McMinn v McMinn 2003
A section 27 claim cannot be pursued by a surviving spouse. Black J said: ‘It is clearly established that until an ancillary relief order has been made, an ancillary relief claim is not a cause of action. This appears to be because of the . .
Cited – G v G (Financial Provision Equal Division) FD 2-Jul-2002
The family assets were in the region of andpound;8.5M. The wife sought a half share. The husband proposed that she should have 40%. The husband had built the family fortune through exceptional hard work and astute business acumen in the field of . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Darke v Strout CA 28-Jan-2003
Abstention in exercising of a statutory right to apply for child maintenance may afford sufficient consideration to support a compromise of a contractual claim. . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Banque De L’Indochine v JH Rayner (Mincing Lane) Ltd 1983
The compromise of a defence may amount to sufficient consideration for the formation of a contract. . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – The Leonidas D 1985
The abandonment of a reference to arbitration might be sufficient consideration for the formation of a contract. . .
Cited – Maclurcan v Maclurcan CA 1897
A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of andpound;90 per annum was to be secured for her life on interests of the husband under two wills.
Held: The court confirmed the report . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Land

Updated: 12 July 2022; Ref: scu.261801

In re Watson, Kipling and Co: ChD 1883

An assessment for rates had been made after the liquidation of the company upon property occupied by the company. The court rejected the submission of counsel for the rating authority that: ‘where a liability is incurred during the winding-up, that liability ought to be paid in full, and therefore these rates ought to be paid in full because they were made during the winding-up.’ It was not enough that the company was in rateable occupation. It must have retained occupation for the benefit of the estate.

Judges:

Kay J

Citations:

(1883) 23 Ch D 500

Jurisdiction:

England and Wales

Citing:

Applied – In re Lundy Granite Co; Ex parte Heavan CA 1871
The landlord of Lundy Island, which was let to a third party, distrained upon goods of the company which had been left upon the tenant’s property. The distraint was for rent which had fallen due more than a year after the winding up order. The . .

Cited by:

Cited – Kahn 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 . .
Cited – Kahn 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 . .
Disapproved – In re National Arms and Ammunition Co CA 1885
‘If the company retains the possession of property which would be rateable in the hands of anyone else, it is only reasonable that it should be rateable in the hands of the company . . the true test is whether there has been a beneficial occupation . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Rating

Updated: 12 July 2022; Ref: scu.182551

The Phosphate Sewage Co (Ltd) v Molleson (Peter Lawson and Son’s Trustee): HL 20 Jun 1876

A company which was formed for the purpose of purchasing a concession of the fields of guano in a certain island from the grantees, nearly two years after its incorporation brought a claim against the grantees for recision of the contract and repayment of the purchase price on the ground of fraud and misrepresentation. Circumstances in which held that the Company had not established the claim.
The estates of a firm carrying on business both in England and Scotland having been sequestrated in Scotland, an English creditor lodged a claim with the trustee, and at the same time raised proceedings in the Court of Chancery in England against the trustee in the Scotch sequestration and certain other parties to recover payment of the same debt as was the subject of the claim in the Scotch sequestration. The trustee having rejected the claim, the English creditor appealed to the Court of Session, and craved that proceedings should be sisted and a dividend effeiring to the claim should be set aside pending the issue of the Chancery suit.- Held (affirming judgment of Court of Session) that in the circumstances there were no grounds for interfering with the ordinary course of procedure.

Citations:

[1876] UKHL 1, 14 SLR 1

Links:

Bailii

Statutes:

Bankruptcy (Scotland) Act 1856

Jurisdiction:

Scotland

Contract, Insolvency

Updated: 12 July 2022; Ref: scu.639640

Colonial Bank v Whinney: HL 1886

The parties disputed whether shares in a joint stock company were choses in action for the purposes of the 1883 Act so as to make them available to creditors on a bankruptcy.
Held: The appeal succeeded.
Blackburn L noted that there had always been a difference between personal property, which was capable of being stolen, taken, and carried away, and thus the subject of larceny at common law, and other kinds of personal property which could not be the subject of larceny or be taken in execution, because they could not be seized.

Judges:

Blackburn L

Citations:

[1886] 1 1 AppCas 426

Statutes:

Bankruptcy Act 1883 44(iii)

Jurisdiction:

England and Wales

Citing:

Appeal from – Colonial Bank v Whinney CA 1885
The court was asked to decide whether shares in a joint stock company were to be classified as choses in action for the purposes of the proviso to section 44(iii) of the 1883 Act by which property in the order or disposition of the bankrupt in his . .

Cited by:

Cited – Your Response Ltd v Datateam Business Media Ltd CA 14-Mar-2014
The claimant employed the defendant to manage subscription lists for the claimant’s magazines. The claimant came to seek damages, and the defendant for non-payment of its invoices. The court was now asked whether it was possible to assert a common . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 July 2022; Ref: scu.559268

Jacob v Vockrodt: QBD 12 Oct 2007

The claimant sought damages saying that the instigation by the defendant of insolvency proceedings had been malicious.

Judges:

Peter Coulson QC HHJ

Citations:

[2007] EWHC 2403 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 July 2022; Ref: scu.261566

Secretary of State for Business, Innovation and Skills v Knight (Contract of Employment): UTAA 9 May 2014

UTAA CONTRACT OF EMPLOYMENT
The Claimant claimed from the Insolvency Service the redundancy payment which her company, of which she was the Managing Director and sole shareholder, had not paid to her. The Tribunal found that she was an employee of the company when it ceased trading, as insolvent. The Claimant had not been paid any salary for the last 2 years of the company’s trading; her evidence was that because times were hard she forfeited her salary in that period to enable other employees and creditors to be paid.
On appeal by the Secretary of State, held:-
1. The Tribunal had not failed to consider the position as it had been at the time when the claimed obligation arose but had decided that the Claimant was an employee at that time.
2 On the findings of fact there was no lack of mutuality or of consideration.
3 It was open to the Tribunal to conclude on the facts that the Claimant had not discharged or varied her contract of employment by not taking salary for the last 2 years. Perversity was not made out.
Appeal dismissed

Judges:

Jeffrey Burke QC HHJ

Citations:

[2013] UKEAT 0073 – 13 – 0905

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Insolvency, Company

Updated: 11 July 2022; Ref: scu.525199

Ross, Re Recall of Sequestration: SCS 10 Mar 2009

The petitioner sought recall of an award of sequestration made against him in the Sheriff Court at Glasgow. The award of sequestration proceeded upon a petition for sequestration at the instance of the petitioning creditor, who had served a charge for payment of a debt of pounds 159,737.40 on the present petitioner. The days of charge had expired without payment and accordingly the petitioner was apparently insolvent under and in terms of section 7(1)(c)(ii) of the Bankruptcy (Scotland) Act 1985.

Citations:

[2009] ScotCS CSOH – 33

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 11 July 2022; Ref: scu.317912

Bryce Ashworth v Newnote Ltd: CA 27 Jul 2007

The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory demand may be set aside if ‘the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt or debts specified in the statutory demand’ and by Rule 6.5(4)(b) a statutory demand may be set aside if ‘the debt is disputed on grounds which appear to the court to be substantial’. The procedure had been misused by the respondents as a tactical move. The demand was set aside.

Judges:

Buxton LJ, Lawrence Collins LJ

Citations:

[2007] EWCA Civ 793

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re Welsh Brick Industries Ltd CA 1946
In a disputed debt case a winding-up order had been made by the county court judge. Notwithstanding that the company had been given unconditional leave to defend the petitioner’s action in the King’s Bench Division for recovery of the debt, it was . .
Cited – National Westminster Bank v Daniel CA 1993
The defence contained two contradictory grounds, and the defendant’s evidence again contradicted the defences. The plaintiff sought summary judgment.
Held: A judge, when considering whether a claim should be determined then or allowed to . .
Cited – Portsmouth v Alldays Franchising Ltd 2005
Application to set aside a statutory demand. . .
Cited – Hofer v Strawson ChD 31-Mar-1999
The debtor had agreed to buy a company from the petitioner, the price to be payable in instalments by means of post-dated cheques. The debtor alleged misrepresentation and stopped one of the cheques. The petitioner served a statutory demand based on . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – 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 . .
Cited – In 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 . .
Cited – Guinan III v Caldwell Associates 2004
. .
Mentioned – Seawind Tankers Corporation v Bayoil SA CA 12-Oct-1998
Although a company admitted a debt, it was nevertheless right to set aside a petition for winding up under that debt, where the company had an unquantified but greater counterclaim within the same proceedings, even if that claim could not presently . .
Cited – Popely v Popely CA 30-Apr-2004
The expression ‘cross-demand’ in rule 6.5(4)(a) did not imply any kind of procedural or juridical relationship to the debt subject to the statutory demand. All it meant was that the demand was one that went the other way, i.e. was a demand by the . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Cited – Hurst v Bennett and others CA 8-Oct-2001
A statutory demand served on Mr Hurst in relation to an indemnity on partners to trustees of the lease would not be set aside because of Mr Hurst’s claims against the partnership. It was because this claim was against the partners in their capacity . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Clark v Cutland CA 18-Jun-2003
One director discovered that his co-director had withdrawn substantial sums from the company. . .
Cited – Coulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.

Cited by:

Cited – Collier 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: 11 July 2022; Ref: scu.258421

Avis v Turner and Another: CA 19 Jul 2007

The court was asked as to the powers of the court on an application by a trustee in bankruptcy for an order for the sale of a former matrimonial home in which the bankrupt had an interest in circumstances where there is an existing order, made in matrimonial proceedings between the bankrupt and his former wife, that sale be postponed until the happening of specified events which have not yet occurred.

Judges:

Chadwick LJ

Citations:

[2007] EWCA Civ 748

Links:

Bailii

Jurisdiction:

England and Wales

Family, Insolvency

Updated: 11 July 2022; Ref: scu.258298

AWB (Geneva) SA and Another v North America Steamships Ltd and Another: CA 18 Jul 2007

A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance proceedings in Canada. The Court of Appeal refused to grant an anti-suit injunction, because the choice of law and choice of jurisdiction agreement did not apply to the insolvency proceedings. The proceedings in Canada did not relate to a dispute under the contract. They were part of insolvency proceedings. It was a matter for the Canadian Court to decide on the relief that it is prepared to grant within the scope of those proceedings as it is concerned with issues of insolvency and not with issues which relate to the contractual obligations under the agreement.

Judges:

Chadwick LJ, Latham LJ, Thomas LJ

Citations:

[2007] EWCA Civ 739, [2007] 2 Lloyds Rep 315

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – AWB Geneva Sa and Another v North America Steamships Ltd ComC 17-May-2007
Whether a party to a contract governed by English law and subject to the exclusive jurisdiction of the English High Court can found on these provisions to restrain the counterparty’s foreign trustee in bankruptcy from seeking an order in foreign . .

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract, Insolvency

Updated: 11 July 2022; Ref: scu.254599

AWB Geneva Sa and Another v North America Steamships Ltd: ComC 17 May 2007

Whether a party to a contract governed by English law and subject to the exclusive jurisdiction of the English High Court can found on these provisions to restrain the counterparty’s foreign trustee in bankruptcy from seeking an order in foreign insolvency proceedings that certain conditions precedent to liability under the contract should cease to apply.

Judges:

Field J

Citations:

[2007] EWHC 1167 (Comm)

Links:

Bailii

Cited by:

Appeal from – AWB (Geneva) SA and Another v North America Steamships Ltd and Another CA 18-Jul-2007
A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction, Insolvency

Updated: 11 July 2022; Ref: scu.252439

Hickling v Baker: CA 4 Apr 2007

The defendant, an undischarged bankrupt, appealed an order made for his committal to prison after failing to co-operate with his trustee.
Held: The discharge of the bankruptcy had been extended already because of the defendant’s failure to co-operate. The defendant had not been given notice of the application for his committal. Section 364 was not incompatible with the defendant’s human rights but an application had to be made on notice save where justified on the evidence. Even then, he should be brought directly before the court where he should be allowed to make representations. It was inappropriate to place the duty on the defendant to apply for his discharge from the committal.

Judges:

Sir Anthony Clarke MR, Rix LJ, LLoyd LJ

Citations:

[2007] EWCA Civ 287, Times 19-Apr-2007

Links:

Bailii

Statutes:

Insolvency Act 1986 364

Jurisdiction:

England and Wales

Insolvency, Human Rights

Updated: 10 July 2022; Ref: scu.250986

Simion v Brown: ChD 14 Mar 2007

Remuneration of trustee – amount claimed exhausting assets realised. The court approved and applied the Practice Statement 2004. David Richards J said: ‘The task for the court is to arrive at a level of remuneration which balances the various criteria of the value of the service rendered, the proportionality of remuneration and a fair and reasonable remuneration for the work properly undertaken, as these criteria are explained in the Practice Statement. The result must resolve the conflict which may in a particular case exist between these criteria. The conflict is likely to be the more acute in cases such as the present, where substantial costs have been incurred in relation to a relatively small estate.’

Judges:

David Richards J

Citations:

[2007] EWHC 511 (Ch), [2007] BPIR 412

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Brook v Reed CA 25-Mar-2011
The court was asked ‘What relation should the costs and remuneration bear to the circumstances, and in particular the size, of the bankruptcy?’ The bankrupt had considered that the costs first awarded to the trustee in bankruptcy and the trustee’s . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 10 July 2022; Ref: scu.250025

Exeter City Council v Bairstow and others: Chd 2 Mar 2007

Non domestic rates imposed on a business property during the period of its occupation by the administrator in a company’s insolvency were properly expenses of the administration.

Judges:

David Richards J

Citations:

[2007] EWHC 400 (Ch), Times 06-Apr-2007

Links:

Bailii

Statutes:

Insolvency (Amendment) Rules (2003 No 1730)

Jurisdiction:

England and Wales

Insolvency, Rating

Updated: 10 July 2022; Ref: scu.249388

Aitken v Robson: SCS 6 Jan 1914

In a sequestration the creditors elected a trustee but failed to decide on the sufficiency of the caution, and the election of the trustee was never confirmed by the Sheriff. After the lapse of seven years, it being no longer competent under the Bankruptcy (Scotland) Act 1913 for the trustee to obtain confirmation, the Court, on the petition of the bankrupt, in the exercise of its nobile officium, without making a remit to the Accountant of Court, discharged the bankrupt but refused to reinvest him in his estates.

Citations:

[1914] SLR 184

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 10 July 2022; Ref: scu.616610

DKLL Solicitors v Revenue and Customs: ChD 6 Mar 2007

Application for an administration order in relation to DKLL Solicitors — which I will refer to as the partnership – a firm of solicitors providing general legal services, whose principal place of business is in Epsom, Surrey. T

Judges:

Andrew Simmonds QC

Citations:

[2007] EWHC 2067 (Ch), [2007] BCC 908

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Legal Professions

Updated: 09 July 2022; Ref: scu.259423

Getliffe and Another, Re Lune Metal Products Ltd: CA 14 Dec 2006

Judges:

Tucke, Carnwath, Neuberger LJJ

Citations:

[2006] EWCA Civ 1720, [2007] Bus LR 589

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Cited – In re Clark (a bankrupt); ex parte the Trustee v Texaco Ltd ChD 1975
Walton J restated the rule in In re James: ‘the rule provides that where it would be unfair for a trustee to take full advantage of his legal rights as such, the court will order him not to do so, and, indeed, will order him to return money which he . .

Cited by:

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

Insolvency

Updated: 08 July 2022; Ref: scu.247349