Category: Insolvency

Cherry v Boultbee: HL 22 Nov 1839

B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested in the same person, and therefore B’s executors remained liable to pay the income as set out in the will.

Judges:

Cottenham LC

Citations:

(1839) My and Cr 442, [1839] EngR 1099, (1839) 4 My and Cr 442, (1839) 41 ER 171

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal From – Cherry v Boultbee CA 6-Apr-1838
TB was indebted to CB, his sister, in the sum of andpound;1878. He became bankrupt, and shortly after his bankruptcy C B made her will, giving legacies of andpound;500 and andpound;2,000 to her executors, in trust to pay the interest thereof (as to . .

Cited by:

Cited – In re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
Explained – In re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
Explained – In Re Peruvian Railway Construction Co Ltd 1915
William Alt died insolvent in 1908. His estate included shares in the company, which went into voluntary liquidation in 1914. Alt owed the company andpound;2,633.
Held: In the distribution of the company’s surplus assets the liquidator could . .
Explained – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Considered – Mills and Others v HSBC Trustee (CI) Ltd and Others ChD 18-Dec-2009
. .
Restated – In re Akerman ChD 2-Jul-1891
The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
Held: They were bound to bring them into account. Kekewich . .
Applied – In Re Rhodesia Goldfields Ltd ChD 1910
Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set-off was therefore not available.
Held: Payment of what was due to Partridge and his . .
Applied – Picken v Lord Balfour of Burleigh CA 1945
The rules of a pension scheme set up by a railway company provided for members’ contributions to be deducted from their salary, but in practice the deductions made had been less than they should have been.
Held: The rule in Cherry v Boultbee . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency

Updated: 04 October 2022; Ref: scu.238732

Duffy and Another v Mederco (Cardiff) Ltd: ChD 23 Feb 2021

Case dealing with the court’s ability to take steps, in effect, to rectify procedural defects in the appointment, or continued appointment, of administrators. The particular potential defect in this case is not on initial appointment but on a purported extension to the term of office of administrators and thus to the administration.

Judges:

HH Judge Davis-White QC

Citations:

[2021] EWHC 386 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 04 October 2022; Ref: scu.658915

Horler v Rubin and Others: CA 18 Jan 2012

The claimant said that he had been in partnership with the bankrupt. The defendant trustee sold and distributed the proceeds of what the claimant now said were partnership assets. The defendant had disbelieved the claim, and said that the claimant had consented to the distribution.

Judges:

Mummery, Jackson, Lewison LJJ

Citations:

[2012] EWCA Civ 4

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave – Horler v Rubin and Others CA 21-Sep-2011
Renewed application for leave to appeal. The court was asked whether Mr Rubin had acted unconscionably in dealing with certain assets which, according to the judge’s findings, belonged to a partnership rather than to the individual partner, whose . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 October 2022; Ref: scu.450321

Key2Law (Surrey) Llp v De’Antiquis: CA 20 Dec 2011

Judges:

Longmore, Rimer LJJ, Warren J

Citations:

[2011] EWCA Civ 1567, [2012] 2 BCLC 195, [2012] ICR 881, [2012] 2 CMLR 8, [2012] IRLR 212, [2012] BCC 375

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 04 October 2022; Ref: scu.450108

Horler v Rubin and Others: CA 21 Sep 2011

Renewed application for leave to appeal. The court was asked whether Mr Rubin had acted unconscionably in dealing with certain assets which, according to the judge’s findings, belonged to a partnership rather than to the individual partner, whose trustee in bankruptcy Mr Rubin was.
Held: Permission granted.

Judges:

Lewison J

Citations:

[2011] EWCA Civ 1555

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Leave – Horler v Rubin and Others CA 18-Jan-2012
The claimant said that he had been in partnership with the bankrupt. The defendant trustee sold and distributed the proceeds of what the claimant now said were partnership assets. The defendant had disbelieved the claim, and said that the claimant . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 01 October 2022; Ref: scu.450035

Lomax Leisure Ltd v Miller and Another: ChD 12 Oct 2007

Citations:

[2007] EWHC 2508 (Ch), [2008] 1 BCLC 262

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ahmed v Landstone Leisure Ltd ChD 30-Jan-2009
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented.
Held: The auctioneer had specifically . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 01 October 2022; Ref: scu.260347

In the Matter of the Supporting Link; In the Matter of the Insolvency Act 1986: ChD 19 Mar 2004

The Secretary of State sought the winding up of the company. Directors offered undertakings as to their future behaviour.
Held: The Court should be slow to accept such undertakings unless the Secretary consented. The company was solvent, but the basic trading model was not attractive, and allegations of fraud had been made. No great sum had gone to charity. These were the very directors whose behaviour had suggested the need for the action, and undertakings could properly be rejected.

Judges:

Vice-Chancellor, The Vice-Chancellor

Citations:

[2004] EWHC 523 (Ch), Times 19-Mar-2004, Gazette 01-Apr-2004, [2004] 1 WLR 1549

Links:

Bailii

Statutes:

Insolvency Act 1986, Companies Act 1985 447, Charitable Institutions (Fund-Raising) Regulations 1994 7

Jurisdiction:

England and Wales

Citing:

Applied – Re Bamford Publishers Ltd ChD 2-Jun-1977
The Secretary of State sought the winding up of a company. The court considered the discretion to accept undertakings as to the company’s future conduct: ‘Quite clearly the Company has been engaged in a disreputable system of trading. The Company . .
Cited – Re Easy-Dial Ltd 16-Sep-2003
On an application for a winding up order, the court accepted undertakings on the basis of which the Secretary of State sought and was given leave to withdraw his petition. . .
Cited – Re Walter L Jacob Ltd CA 1989
Having authorised an enquiry under section 447, the Secretary of State presented a winding-up petition of the respondent, an authorised dealer in securities. The company had been obliged to cease trade by its regulatory body. The judge held that the . .
Cited – Re Vehicle Options Ltd 21-Feb-2002
The court accepted undertakings with regard to the conduct of a franchised vehicle-leasing broker. The Secretary of State consented to the order. . .
Cited – In Re Senator Hanseatische Verwaltungsgesellschaft Mbh and Another CA 30-Jul-1996
The Secretary of State had presented a winding up petition on public interest grounds against a company carrying on an illegal lottery.
Held: The court refused the application of the Secretary of State for the appointment of a provisional . .
Cited – In the Matter of Blackspur Group Plc; Secretary of State for Trade and Industry v Davies; Thomas; Thompson; Andrew CA 19-Nov-1997
The Secretary of State may perfectly properly refuse to accept offered undertakings and instead decide to prosecute company directors under the Act, even though though the terms offered were intended to give equivalent effect. The purpose of the . .

Cited by:

Cited – Bell Davies Trading Ltd and Another v Secretary of State for Trade and Industry CA 30-Jul-2004
The directors of the company had organised a scheme for imports from China which was thought to be an unlawful abuse of the import licensing scheme. When presneted with an application by the Secretary of State for the winding up of the company, the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 01 October 2022; Ref: scu.194656

The Secretary of State for Trade and Industry v Goldberg, Mcavoy: ChD 26 Nov 2003

The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of duty alone was neither necessary nor sufficient. Unfitness by reason of incompetence might alone be enough. Though honesty was essential in a director, proof of dishonesty was not necessary where a breach of duty had not been shown. A standard nevertheless had to be used, even within a broad brush approach. A court must be very careful before making an order where the conduct complained of was not dishonest, and involved no breach of duty. However in this case, the standard had been met.

Judges:

The Honourable Mr Justice Lewison

Citations:

[2003] EWHC 2843 (Ch), Times 02-Dec-2003

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 1A

Jurisdiction:

England and Wales

Citing:

Cited – Re Bath Glass Ltd CA 1988
A requirement that the court must have regard ‘in particular’ to the matters listed in a schedule means that the court is not confined to looking at those matters: ‘To reach a finding of unfitness the court must be satisfied that the director has . .
Cited – Secretary of State for Trade and Industry v Christopher Paul Reynard CA 18-Apr-2002
A company director was examined in court, in the course of company director disqualification proceedings. The judge was so concerned by his behaviour as a witness, as to extend the period of disqualification. He had appealed, and the Secretary of . .
Cited – In re Sevenoaks Stationers (Retail) Ltd CA 1990
The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to . .
Cited – Lagunas Nitrate Co v Lagunas Syndicate CA 1899
The standard of behaviour expected of a company director was described: ‘As directors, I am not aware that there is any difference between their legal and their equitable duties. If directors act within their powers, if they act with such care as is . .
Cited – Re D’Jan of London Ltd; Copp v D’Jan ChD 1-Sep-1993
Directors liability to compensate on insolvency for own negligence. ‘In my view, the duty of care owed by a director at common law is accurately stated in s 214(4) of the Insolvency Act 1986. It is the conduct of – ‘a reasonably diligent person . .
Cited – In re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
Cited – In Re Living Images Ltd ChD 7-Aug-1995
Director must have intended fraudulent preference for creditor to be disqualified. Trading whilst insolvent amounts to trading with creditors’ money. . .
Cited – Secretary of State for Trade and Industry v McTighe (No 2) CA 1996
The court accepted that it was misconduct for a director to pursue: ‘the policy of not paying the debts of creditors who are not pressing when it is known that the company has insufficient reserves enabling it to trade except at the risk of such . .
Cited – Winkworth v Edward Baron Development Co Ltd HL 1986
A company director has duties to the company’s creditors as well as the shareholders. ‘Equity is not a computer. Equity operates on conscience . .’ . .
Cited – West Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .
Cited – Secretary of State for Trade and Industry v McTighe (No 2) CA 1996
The court accepted that it was misconduct for a director to pursue: ‘the policy of not paying the debts of creditors who are not pressing when it is known that the company has insufficient reserves enabling it to trade except at the risk of such . .
Cited – Secretary of State for Trade and Industry v Gash 1997
The court considered the possible propriety of a company continuing to trade whilst insolvent: ‘The companies legislation does not impose on directors a statutory duty to ensure that their company does not trade while insolvent; nor does that . .
Cited – Secretary of State for Trade and Industry v Creegan and others CA 27-Nov-2001
‘It is well established on the authorities that causing a company to trade, first, while it is insolvent and, secondly, without a reasonable prospect of meeting creditors’ claims is likely to constitute incompetence of sufficient seriousness to . .
Cited – Secretary of State for Trade and Industry v Griffiths; Conway and Wassell; In Re Westmid Packing Services Ltd CA 16-Dec-1997
Guidance given on what evidence should be admitted to affect the length of disqualification and conditions of Director’s disqualification.
A director’s duty to exercise his powers in the best interests of the company and to recognise the . .
Cited – Facia Footwear Ltd v Hinchliffe 1998
A director owes duties to the company’s creditors. . .
Cited – In Re Barings Plc, Secretary of State for Trade and Industry v Baker (No 5) ChD 25-Nov-1998
A person disqualified from acting as a company director might exceptionally be given permission to act as non-executive director in named companies where this appeared necessary and the cause of the original disqualification was unrelated.
As . .
Cited – In re Barings plc (No 5) CA 2000
A finding of breach of duty is neither necessary nor of itself sufficient for a finding of unfitness. As the judge (at first instance) observed a person may be unfit even though no breach of duty is proved against him or may remain fit . .
Cited – Re Pantone 485 Ltd ChD 2002
It is not a breach of duty if directors of an insolvent company act consistently with the interest of the creditors generally, but inconsistently with the interests of a particular creditor or section of creditors. . .
Cited – Secretary of State for Trade and Industry v Arif and Others ChD 25-Mar-1996
The length of a director’s disqualification is not to be discounted for the time elapsed up to the hearing of the case. As to section 221 of the Companies Act, it : ‘has, at the least, two purposes. First, to ensure that those who are concerned in . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Secretary of State for Trade and Industry v Ivens and Another ChD 24-Sep-1997
Evidence of activities of director in non-insolvent but associated company admissible in disqualification proceedings. . .
Cited – Secretary of State for Trade and Industry v Ettinger 1993
The court discussed the standards required of company directors. ‘Those who take advantage of limited liability must conduct their companies with due regard to the ordinary standards of commercial morality. They must also be punctilious in observing . .
Cited – Secretary of State for Trade and Industry v Ivens and Another ChD 24-Sep-1997
Evidence of activities of director in non-insolvent but associated company admissible in disqualification proceedings. . .
Cited – In Re Dawson Print Group Ltd 1987
Proof of dishonesty in a company director is not a strict requirement before a disqualification can be ordered. Hoffmann J said: ‘There must, I think, be something about the case, some conduct which if not dishonest is at any rate in breach of . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 01 October 2022; Ref: scu.188253

Gardner v London Chatham and Dover Railway Co (No 1): 1867

When Parliament expressly confers powers and imposes duties and responsibilities of an important kind upon a particular body, it is, as he put it, improper for the court by the appointment of a manager . . . itself to assume those powers and duties. Cairns LJ: ‘When the court appoints a manager of a business or undertaking, it in effect assumes the management into its own hands; for the manager is the servant or officer of the court, and upon any question arising as to the character and details of the management, it is the court which must direct and decide.’

Judges:

Cairns LJ

Citations:

(1867) LR 2 Ch App 201

Jurisdiction:

England and Wales

Cited by:

Cited – Hughes and Others v HM Customs and Excise Admn 21-Dec-2001
The applicants had either been acquitted of drugs trafficking offences, or were third parties. In each case, property had been taken into receivership, and orders had been made for the receivers to take their costs from the assets taken. The . .
Cited – Kilby v Basildon District Council Admn 26-Jul-2006
Tenants complained that the authority landlord had purported to vary a clause in his secure tenancy agreement which gave certain management rights to tenants.
Held: The powers to let on secure tenancies were governed by statute. The clause . .
Lists of cited by and citing cases may be incomplete.

Administrative, Insolvency

Updated: 01 October 2022; Ref: scu.182892

Palmisani v Instituto Nazionale della Previdenze Sociale (INPS): ECJ 10 Jul 1997

(Judgment) (Rec 1997,p I-4025) Social policy – Protection of employees in the event of the insolvency of their employer – Council Directive 80/987/EEC – Liability of a Member State arising from belated transposition of a directive – Adequate reparation – Limitation period

Citations:

C-261/95, [1997] EUECJ C-261/95, [1997] ECR I-4025

Links:

Bailii

Statutes:

Council Directive 80/987/EEC

Jurisdiction:

European

Cited by:

Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Lists of cited by and citing cases may be incomplete.

Employment, Limitation, Insolvency

Updated: 01 October 2022; Ref: scu.161651

Masri v Consolidated Contractors International Company Sal and Another: ComC 23 May 2008

Application for interpretation of a receivership order.

Judges:

David Steel J

Citations:

[2008] EWHC 1159 (Comm), [2008] 1 All ER 305, [2008] 1 CLC 878

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Masri v Consolidated Contractors International Company Sal and Another CA 4-Apr-2008
The court was asked whether the Commercial Court had international jurisdiction to make an order for the appointment of a receiver by way of equitable execution, and a freezing order, in relation to the judgment debtors’ interest in the concession . .
See Also – Masri v Consolidated Contractors International (UK) Ltd ComC 17-May-2005
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd CA 24-Oct-2005
The defendants who were resident in Greece appealed a decision that the English court had jurisdiction over them, by virtue of a close connection of the matter with earlier proceedings heard here.
Held: The fact that the defendants were all . .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 28-Jul-2006
. .
See Also – Masri v Consolidated Contractors International (UK) Ltd and others ComC 25-May-2007
Application for an order to prevent some defendants pursuing action in other jurisdictions. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another CA 11-Jul-2007
. .
See Also – Masri v Consolidated Contractors International UK Ltd and Another ComC 14-Mar-2007
Judgment on quantum. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 20-Dec-2007
. .

Cited by:

Appeal from – Masri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
Appeal from – Masri v Consolidated Contractors International Company Sal and others CA 28-Jul-2008
The judgment creditor appealed an order refusing to oblige the defendant company to attend court and provide information about its means. . .
See Also – Masri v Consolidated Contractors International (UK) Ltd and Another ComC 17-Jun-2008
Application for further order of payment of costs of action on account. . .
See Also – Masri v Consolidated Contractors International Company Sal and Another ComC 21-Oct-2008
The court heard matters relating to the recovery by the claimant of $63,000,000. . .
See Also – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
See Also – Masri v Consolidated Contractors (Oil and Gas) Company Sal CA 6-Feb-2009
Appeal from order with regard to management of receivership. . .
See Also – Masri v Consolidated Contractors International Co Sal and others CA 13-Nov-2008
The creditors sought leave to appeal against orders made in the course of proceedings to recover a very substantial debt from a foreign resident company. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 6-Oct-2010
The third respondent sought to strike out an application for his committal for failure to comply with orders made in support of proceedings to enforce a substantial judgment. . .
See Also – Masri v Consolidated Contractors International Company Sal ComC 21-Oct-2010
The court held a case management conference with regard to an intended application for committal for contempt of one of the defendants. . .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 21-Jan-2011
. .
See Also – Consolidated Contractors International Company Sal and Another v Masri CA 3-Feb-2011
. .
See Also – Masri and Another v Consolidated Contractors International Co Sal and Others ComC 3-Mar-2011
On notice hearing with regard to without notice receivership order. . .
See Also – Masri v Consolidated Contractors International Company Sal and Others ComC 5-May-2011
The applicant, and judgment creditor sought orders for committal for contempt by the defendant companies and officers after failing to comply with court orders. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 September 2022; Ref: scu.268734

Wendy Fair (Heritage) Ltd v Hobday and Another: ChD 27 Mar 2006

Application for contribution from directors after they had traded beyond the time when any prospect of avoiding insolvent liquidation was lost.

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2006] EWHC 5803 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 214

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 29 September 2022; Ref: scu.241457

Secretary of State for Trade and Industry v Paulin: ChD 13 May 2005

The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to appeal to a high court judge.

Judges:

Morritt

Citations:

[2005] EWHC 888 (Ch), Times 26-May-2005

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 6 21(2)

Jurisdiction:

England and Wales

Citing:

Cited – Mulholland v Mitchell HL 1971
The House was asked whether to re-open an assessment of damages where there had been a very marked change in the injured person’s situation shortly after the trial. There was no suggestion of fraud. The Court of Appeal had decided to admit the fresh . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – Hanley v Stage and Catwalk Ltd (T/A Acorn Studios) and others CA 7-Nov-2001
. .
Cited – Maria Dolores Townsend and Beverley Ann King v George Nicolas Achilleas CA 6-Jul-2000
. .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
Cited – Re Probe Data Systems Ltd (No.3) CA 1992
An appeal from a director disqualification is to be under the Insolvency Rules. . .
Cited – Hertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
Cited – Charlesworth v Relay Roads Ltd ChD 31-Aug-1999
It remains possible to amend pleadings after judgment but before the order is drawn up, provided the party involved complies with the appropriate procedures. This may apply even though it would require the presentation of further evidence and . .
Cited – Irtelli v Squatriti and Others CA 15-Apr-1992
Fresh evidence may be accepted in appeals against committal for contempt. . .
Cited – In re Sevenoaks Stationers (Retail) Ltd CA 1990
The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to . .
Cited – In re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 29 September 2022; Ref: scu.225273

Lord v Sinai Securities Ltd and others: ChD 21 Jul 2004

For it to be found that a person had acted as a shadow director within the section, it must be shown that ‘all the directors, or at least a consistent majority of them,’ had been accustomed to act on the directions of the alleged shadow director.

Judges:

Hart J

Citations:

[2004] EWHC 1764 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 741(2)

Jurisdiction:

England and Wales

Cited by:

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

Company, Insolvency

Updated: 29 September 2022; Ref: scu.226172

Digital Satellite Warranty Cover Ltd v The Financial Services Authority: CA 29 Nov 2011

Parties appealed against on order for the winding up of the company. The Authority (FSA) had said that the company which supplied warranties to owners of digital receiver boxes were providing regulated insurance services, but that the companies were not registered. The warranties were for the repair and supply of parts only, and the company denied that the activity should be regulated.
Held: The company’s appeal failed.

Judges:

Patten LJ, Maurice Kay VP LJ, Aikens LJ

Citations:

[2012] 1 CLC 39, [2011] EWCA Civ 1413, [2012] 2 All ER (Comm) 38, [2012] Bus LR 990, [2012] Lloyd’s Rep IR 112

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000, Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, First Council Directive 73/239/EEC, Council Directive 84/641/EEC

Jurisdiction:

England and Wales

Citing:

Appeal from – Re Digital Satellite Warranty Cover Ltd and Others ChD 31-Jan-2011
The Financial Services Authority sought public interest orders for the winding up of three companies selling, it said, extended warranty cover plans without authorisation. The companies said that authorisation was not required, since only services . .
Cited – Prudential Insurance Co v Inland Revenue Commissioners 1904
Contract for payment of sum on event
The Insurance company provided endowment insurance polices. They disagreed with the Commissioners as to whether these were policies of insurance and thus as to how they fell to be stamped. Life insurance was defined in the 1891 Act as ‘insurance . .
Cited – Card Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .

Cited by:

Appeal from – Digital Satellite Warranty Cover Ltd and Another v Financial Services Authority SC 13-Feb-2013
The appellants challenged an order for the dissolution of their company under the 2000 Acts. They had provided warranties for assorted consumer electrical goods which amounted to insurance, but said that they were not required to be registered under . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Financial Services, Insurance, European

Updated: 28 September 2022; Ref: scu.449032

Procureur-generaal bij het hof van beroep te Antwerpen v Zaza Retail: ECJ 17 Nov 2011

ECJ (Area Of Freedom, Security And Justice) Regulation (EC) No 1346/2000 – Insolvency proceedings – Opening of territorial insolvency proceedings – Conditions laid down by the applicable national law preventing the opening of main insolvency proceedings – Creditor empowered to request the opening of territorial insolvency proceedings

Judges:

Tizzano, President

Citations:

C-112/10, [2011] EUECJ C-112/10

Links:

Bailii

European, Insolvency

Updated: 28 September 2022; Ref: scu.448734

In re Agrimarche Ltd: ChD 5 Jul 2010

One of the branches of the business conducted by the company before its insolvency was the making of options for agricultural commodities. The liquidator asked the court for guidance on their valuations.

Judges:

Lewison J

Citations:

[2010] EWHC 1655 (Ch), [2010] BCC 775

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 27 September 2022; Ref: scu.420221

in Re Bradley-Hole (A Bankrupt): ChD 1995

There was a conflict between the creditors who were party to the IVA and a subsequent trustee in bankruptcy; and the bankruptcy was petitioned by a new creditor who was unaffected by the IVA.
Held: The IVA had created a trust of the bankrupt’s assets for the benefit of the IVA creditors. The bankruptcy order did not terminate the IVA, and the bankrupt retained no interest in the assets subject to the IVA, and therefore those assets did not vest in the trustee and the trust continued notwithstanding the bankruptcy. An argument based on section 276(2) that the trust ended on the making of the bankruptcy order was not accepted.The IVA constituted the supervisor as trustee of all the bankrupt’s assets that were the subject of the voluntary arrangement.

Judges:

Rimer J

Citations:

[1995] 1 WLR 1097, [1995] 4 All ER 865

Statutes:

Insolvency Act 1986 276(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Child Maintenance and Enforcement Commission v Beesley and Another ChD 11-Mar-2010
The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 September 2022; Ref: scu.402615

In re Highfield Commodities Ltd: ChD 1985

The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I do not think that the old authorities, properly read, had the effect of laying down any rule that the power to appoint a provisional liquidator is to be restricted in the way for which Mr Burke-Gaffney contends. No doubt a provisional liquidator can properly be appointed if the company is obviously insolvent or the assets are in jeopardy; but I do not think that the cases show that in no other case can a provisional liquidator be appointed over a company’s objection . . Section238 . . is in quite general terms. I can see no hint in it that it is to be restricted to certain categories of cases. The section confers on the court a discretionary power, and that power must obviously be exercised in a proper judicial manner. The exercise of that power may have serious consequences for the company, and so a need for the exercise of the power must overtop those consequences’ . . but in the case of a public interest petition, ‘the public interest must be given full weight’.
The general practice is for an undertaking as to damages to be given upon an ex parte application for provisional liquidators, but such an undertaking would not be required on an inter partes application. A cross-undertaking as to damages might not be required where ‘The Secretary of State was seeking to enforce the law, or was acting selflessly in the performance of a public duty directly or impliedly imposed by statute . .’

Judges:

Sir Robert Megarry V-C

Citations:

[1985] 1 WLR 149, [1984] BCLC 623

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Dobson v Hastings 1992
The Rules of the Supreme Court indicate that save when permitted under the rules, documents on the court file are not intended to be inspected or copied. There is no common law right to obtain access to a document filed in proceedings and held as . .

Cited by:

Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Applied – Securities and Investments Board v Lloyd-Wright and Another ChD 23-Jun-1993
The SIB sought injunctions pursuant to the 1986 Act, three to prevent continued breaches of the law and fourth, an asset freezing order. It was argued that although it might be right to dispense with a cross-undertaking in damages in relation to the . .
Cited – The Financial Services Authority v Sinaloa Gold Plc and Others SC 27-Feb-2013
The FSA sought injunctions to restrain the activities of the first defendants, including asset freezing orders under section 380 of the 2000 Act. The defendant’s bankers objected that they would be prejudiced by the restrictions without the FSA . .
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 27 September 2022; Ref: scu.401969

London Borough of Camden v Martin: ChD 7 Aug 2009

Appeal against bankruptcy order made after protracted proceedings for recovery of unpaid Council Tax.
Held: The appeal was allowed, the Council having failed to serve the necessary notices.

Judges:

Jules Sher QC

Citations:

[2009] EWHC 2040 (Ch), [2009] BPIR 1420, [2009] RVR 309

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Rating

Updated: 27 September 2022; Ref: scu.401883

Pickthall v Hill Dickinson Llp and Another: ChD 13 Oct 2008

The defendant sought to have struck out a claim where the claimant was bankrupt, and the debt was unassigned from the trustee in bankruptcy.

Citations:

[2008] EWHC 3409 (Ch), [2009] PNLR 10, [2009] BPIR 114, [2009] Lloyd’s Rep PN 25

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Pickthall and Another v Hill Dickinson Llp CA 11-Jun-2009
The court was asked as to the extent to which it is an abuse of the process for a claimant to commence proceedings without having the relevant cause of action vested in him, and whether it would be right to allow him to amend his pleadings to plead . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 27 September 2022; Ref: scu.396459

Brunsden v Stratton: 1719

A settlement made after marriage on the wife and children, pursuant to articles entered into previous to the marriage, though not exactly agreeing with them, not voluntary nor fraudulent against bond creditors.

Citations:

[1719] EngR 10, (1719) Prec Ch 520, (1719) 24 ER 233

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 27 September 2022; Ref: scu.371300

Sisu Capital Fund Ltd and others v Tucker and others: ChD 9 Sep 2005

Judges:

Warren J

Citations:

[2005] EWHC 2170 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re Edennote Ltd; Tottenham Hotspur plc v Ryman CA 21-May-1996
The company was in liquidation. Terence Venables, who had owned the shares, had taken an assignment of a cause of action against the football club. The court had set aside that assignment, and removed the liquidator. Venables now appealed saying . .

Cited by:

See Also – Sisu Capital Fund Ltd and others v Tucker and others 28-Oct-2005
The Defendants were accountants who had been sued through their partnership in KPMG. They had been granted a order for their costs. They sought payment for the time they had spent prersonally in preparing their defences.
Held: As professionals . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 September 2022; Ref: scu.231270

Celtech International Limited v Dalkia Utilities Services Plc: ChD 12 Feb 2004

Judges:

Mr Justice David Richards

Citations:

[2004] EWHC 193 (Ch

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Dalkia Utilities Services Plc v Celtech International Ltd ComC 27-Jan-2006
The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
See Also – Dalkia Utilities Services Plc v Celtech International Ltd (No. 2) ComC 2-Feb-2006
. .
Lists of cited by and citing cases may be incomplete.

Contract, Insolvency

Updated: 27 September 2022; Ref: scu.193447

Macaria Investments Ltd v Sanders and Another: ChD 17 Dec 2010

Application under section 6 of the Insolvency Act 1986 for an order that the approval of a Company Voluntary Arrangement in respect of the second respondent given by a meeting of creditors be revoked on the grounds that there was material irregularity in relation to that meeting.

Judges:

Roth J

Citations:

[2010] EWHC 3353 (Ch), [2011] BPIR 1013

Links:

Bailii

Statutes:

Insolvency Act 1986 6

Jurisdiction:

England and Wales

Insolvency

Updated: 26 September 2022; Ref: scu.427406

Daltel Europe Ltd and others v Makki and others: ChD 21 Oct 2005

Citations:

[2005] EWHC 2258 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Daltel Europe Ltd (In Liquidation) and Others v Hassan Ali Makki ChD 17-Jun-2004
. .
See Also – Daltel Europe Ltd and others v Makki and others ChD 3-May-2005
Application was made for leave to bring proceedings for contempt of court. David Richards J said that: ‘Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number . .

Cited by:

See Also – Daltel Europe Ltd and others v Makki and others CA 28-Feb-2006
The defendant had breached freezing orders and had verified statements put before the court without honestly believing them. He now challenged the subsequent contempt proceedings saying that they were criminal within section 25 of the 1988 Act and . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 25 September 2022; Ref: scu.231271

UBS Ag New York and Others v Fairfield Sentry Ltd and Others: PC 20 May 2019

(From the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)) Appeal from refusal to grant an anti-suit injunction to restrain the liquidators of Fairfield Sentry Ltd (‘the liquidators’) from pursuing proceedings in the United States under section 249 of the British Virgin Islands’ Insolvency Act 2003 (‘the IA 2003’). This section empowers the High Court of the BVI (‘the High Court’) to set aside voidable transactions, such as an unfair preference or an undervalue transaction, and to make orders to restore the position to what it would have been if the company had not entered into such transactions.

Judges:

Lord Reed, Lord Hodge, Lord Briggs, Lady Arden, Lord Kitchin

Citations:

[2019] UKPC 20

Links:

Bailii

Jurisdiction:

Commonwealth

Insolvency, Litigation Practice

Updated: 25 September 2022; Ref: scu.638482

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 joint debt, and to become severally liable for that part, the parties have necessarily entered into a binding agreement for good consideration that the debtor’s liability for the rest of the joint debt is discharged. He had been one of three partners owing a substantial debt to the creditors. He said he had been told he would not be pursued if he paid at a third of the rate for all three, and that he had done so.
Held: The fact that a creditor agrees with a joint debtor to accept payment from him alone of his proportionate share does not result in a binding agreement. Accordingly, this factual paradigm does not constitute yet another situation when the rule in Pinnel’s case is avoided.
As to the argument that an estoppel had been created, the effect of promissory estoppel is usually suspensory only, but, if the effect of resiling is sufficiently inequitable, a debtor may be able to show that the right to recover the debt is not merely postponed but extinguished. The defendant had an arguable case for an estoppel, and the appeal was allowed.

Judges:

Mummery LJ, Arden LJ, Longmore LJ

Citations:

[2007] EWCA Civ 1329, [2007] NPC 136, [2008] 1 WLR 643, [2007] BPIR 1452

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pinnel’s Case, Penny v Core CCP 1602
Payment of Lesser Sum Not Satisfaction
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may . .
Cited – Foakes v Beer HL 16-May-1884
Mrs Beer had obtained judgment against Dr Foakes for pounds 2,090 19s. He asked for time to pay and they agreed with him, acknowledging the debt, and paying part immediately and undertaking to pay the balance over a period of time. In consideration . .
Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Cited – 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 . .
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 – Hughes v Metropolitan Railway Co HL 1877
A notice to repair had been served by the landlord on the tenant. The tenant wrote offering to buy the premises and proposed deferring the commencement of repairs until the landlord responded. The landlord replied by letter asking the price. It was . .
Cited – Central London Property Trust Ltd v High Trees House Ltd KBD 18-Jul-1946
Promissory Estoppel Created
The plaintiff leased a block a flats to the defendant in 1939, at an annual rental of pounds 2500. High Trees had difficulty in filling the flats because of the war, and the parties agreed in writing in 1940 to reduce the rental to a half. No time . .
Cited – Tool Metal Manufactuing Company Ltd v Tungsten Electric Company Ltd HL 16-Jun-1955
The principle in Hughes v Metropolitan Railway could apply to a reduction by concession in payments due to a creditor and a concession could be terminated by giving reasonable notice. . .
Cited – D and C Builders Ltd v Rees CA 1966
The plaintiff builders had been chasing payment of their undisputed invoice. Knowing that the builders were in financial difficulties, the defendant offered rather less, saying that if it was not accepted, she would pay nothing. She made the payment . .
Cited – Couldery v Bartrum 1881
coulder_bartrum1881
A secured creditor was not entitled to amend after a composition had been taken and completed. Sir George Jessel MR said: ‘According to English common law a creditor might accept anything in satisfaction of his debt except a less amount of money. He . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract, Estoppel

Leading Case

Updated: 25 September 2022; Ref: scu.262160

Swift Advances Plc v Mckay and Another: CHNI 10 Feb 2011

‘The point at issue is a relatively novel one as to the right of these two former bankrupts to defend possession proceedings brought against them by way of an appeal from the Master to the High Court in circumstances where they no longer have a proprietary interest in the dwellings in question and where their trustee in bankruptcy (and former solicitors) purported to withdraw the appeal.’

Citations:

[2011] NICh 2

Links:

Bailii

Jurisdiction:

Northern Ireland

Insolvency

Updated: 22 September 2022; Ref: scu.440594

In re Realstar Ltd: ChD 30 Aug 2007

‘application for an injunction to restrain the respondent from proceeding with a winding up petition against the applicant. It is now agreed that the petition should be dismissed and the only issue before me is one of costs. The applicant asks for its costs of this application upon an indemnity basis.’

Judges:

Kitchin J

Citations:

[2007] EWHC 2921 (Ch), [2008] BPIR 1391

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Costs

Updated: 22 September 2022; Ref: scu.381527

Poulton v Ministry of Justice: ChD 2 Sep 2009

The trustee of a bankrupt sought to claim in damages after the court had failed to comply with its statutory obligation to issue notices of the bankruptcy, allowing the bankrupt to sell property to the loss of the estate. The defendant denied that any statutory duty arose.

Judges:

Her Honour Judge Hazel Marshall QC

Citations:

[2009] EWHC 2123 (Ch), [2009] BPIR 1512

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 22 September 2022; Ref: scu.377210

Cowlishaw and Another v O and D Building Contractors Ltd: ChD 8 Oct 2009

Reserved judgement on an application by administrators for an order pursuant to section 236 of the Insolvency Act 1986 seeking provision of a wide range of documents from the respondent building contractors.

Judges:

HHJ David Cooke

Citations:

[2009] EWHC 2445 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Insolvency

Updated: 22 September 2022; Ref: scu.375957

It’s A Wrap (UK) Ltd v Gula and Another: ChD 16 Sep 2005

The defendant company directors were accused of having paid dividends to themselves when the company was in fact making a loss.
Held: A claim might lie, but the pleadings did not phrase it adequately, and an amendment would be improper. Though payments had been made at a time when the company ws making losses, a liability to repay arose only where there was knowledge or reasonable cause for the directors to believe that the Act was being contravened as opposed to knowledge of the facts which would give rise to a contravention. The claim failed.

Judges:

Nicholas Davidson QC

Citations:

Times 12-Oct-2005, [2005] EWHC 2015 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 263(1) 277

Jurisdiction:

England and Wales

Citing:

Cited – Thorne v Silverleaf CA 1994
Peter Gibson LJ said: ‘In s.217(1)(b) knowledge that it is a crime is required.’ . .
Cited – Precision Dippings Ltd v Precision Dippings Marketing Ltd 1986
The claimant had paid a dividend to its parent company. The claimant’s case was that the payment was in contravention of sections 39 and 43 of the Companies Act 1980, as there were no available profits at the time, and so were ultra vires the . .
Cited – Bairstow and Others v Queens Moat Houses plc CA 17-May-2001
The court considered the liability of directors for an unlawfully paid dividend.
Held: Robert Walker LJ: ‘The prospect of the former directors being able to obtain contribution from innocent recipients of unlawful dividends was debated . .

Cited by:

Appeal from – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 22 September 2022; Ref: scu.230394

Bloom and Others v The Pensions Regulator and Others; In re Nortel GMBH (in administration: CA 14 Oct 2011

‘These appeals raise important and difficult questions posed by the impact of legislation for the protection of pension funds upon companies which are undergoing an insolvency process.’

Judges:

Laws, Lloyd, Rimer LJJ

Citations:

[2011] EWCA Civ 1124, [2012] BCC 83, [2012] 1 BCLC 248, [2012] BCLC 248, [2012] 1 All ER 1455, [2012] Bus LR 818, [2011] Pens LR 397

Links:

Bailii

Statutes:

Insolvency Rules 1986, Pensions Act 2004 43, Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Appeal from – Bloom and Others v The Pensions Regulator (Nortel, Re) ChD 10-Dec-2010
Applications for directions by the administrators of twenty companies in two groups, all raising the same common questions as to the effect of the Financial Support Direction regime created by the Pensions Act 2004 upon companies in administration . .

Cited by:

Appeal from – 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.

Company, Insolvency

Updated: 20 September 2022; Ref: scu.445631

Revenue and Customs v Rochdale Drinks Distributors Ltd: CA 13 Oct 2011

The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of submitting false VAT Input tax claims, and suppressing Output tax invoices.
Held: The appeal succeeded. ‘A well-settled rule of practice . . is that a debt that is wholly disputed on substantial grounds cannot ordinarily found the basis for the making of a winding up order. A petition based on a debt shown to be the subject of such a substantial dispute will ordinarily be dismissed . . It is not sufficient for the company merely to raise a cloud of objections. It has, in the old-fashioned phrase, to condescend to particulars by properly explaining the basis of the claimed dispute and showing that it is a substantial one. If, despite the company’s protestations, the alleged dispute can be seen on the papers to be no dispute at all, or to be no dispute as to part of the debt, the petition will ordinarily be allowed to proceed. If, however, the dispute is shown to be one whose resolution will require the sort of investigation that is normally within the province of a conventional trial, the settled practice is for the petition to be struck out or dismissed so that the parties can contest their differences before whichever other forum may be appropriate.’
‘ the real question before the judge on the ‘missing traders’ issue was whether RDD had shown by its evidence that, upon the hearing of the petition, it was likely to be able to show that in relation to all the alleged trades it claimed to have carried out it had a good arguable case that they were genuine. The judge did not, however, as I read his judgment, approach the case from that angle. In my view he should have done. Had he so approached it, I consider that he could only have concluded that RDD had not discharged that burden. ‘
Lewison LJ agreed but also considered the propriety of the actions of the Revenue in seeking the appointment of a provisional liquidator without notice of the application being first given to the company’s directors, saying: ‘the mere fact that a winding up order is likely to be made on a creditor’s petition is not enough on its own to justify the appointment of a provisional liquidator. Something more is needed. Although the phrase ‘dissipation of assets’ has crept into this branch of the law it is important not to fall into the trap of equating the criteria for the appointment of a provisional liquidator with the criteria for the grant of a freezing order. For one thing, a freezing order will not (at least in theory) prevent transactions that take place in the ordinary course of business, whereas if a provisional liquidator is appointed the business will usually grind to an instant halt. For another, the need to preserve books and records may be an important factor in deciding whether or not to appoint a provisional liquidator. This may be so where there is clear evidence of fraud; or even (as in this case) where there is almost irrefutable evidence of chaos.’

Judges:

Rimer, Pill, Lewison LJJ

Citations:

[2011] STI 2776, [2011] EWCA Civ 1116, [2011] BPIR 1604, [2012] STC 186

Links:

Bailii

Statutes:

Insolvency Act 1986 122 124

Jurisdiction:

England and Wales

Citing:

Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Re Union Accident Insurance Co Ltd ChD 1972
A provisional liquidator cannot be appointed on a baseless petition. There are two conditions to be met. The first was that the petition must disclose a prima facie case, the second was that there were circumstances that require that a provisional . .
Cited – In re Highfield Commodities Ltd ChD 1985
The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I . .
Cited – Re a company (No 003102 of 1991), ex parte Nyckeln Finance Co Ltd ChD 1991
. .
Cited – 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 – Stocznia Gdanska Sa v Latreefers Inc ComC 21-Dec-1998
In some cases the appointment of a provisional liquidator of an insolvent company may be justified because of his ability to investigate possible claims against directors for fraudulent or wrongful trading. . .
Cited – National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .

Cited by:

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

Insolvency, Company

Updated: 20 September 2022; Ref: scu.445450

Kapoor v National Westminster Bank Plc and Another: CA 5 Oct 2011

This appeal concerned two issues of principle relating to the approval of an individual voluntary arrangement. One was as to whether, where there has been an assignment of part of a debt, which can only take effect in equity, the person entitled to vote at the creditors’ meeting called to approve the IVA was the assignor or the assignee. The second was whether there has been a ‘material irregularity’ at or in relation to such a meeting within the 1986 Act section 262(1)(b) if account has been taken of the vote of a creditor who has taken an assignment of part of a debt from an associate of the debtor, the assignment was for no commercial purpose and on uncommercial terms, and was solely for the purpose of enabling the assignee to vote in favour of the IVA, and, had the vote been left out of account, the IVA would not have secured the majority of votes required under the Insolvency Rules 1986.

Judges:

Pill, Etherton LJJ, Sir Mark Potter

Citations:

[2011] EWCA Civ 1083, [2012] 1 All ER 1201, [2011] NPC 97, [2012] Bus LR D25, [2011] BPIR 1680

Links:

Bailii

Statutes:

Insolvency Act 1986 262(1)(b)

Jurisdiction:

England and Wales

Insolvency

Updated: 20 September 2022; Ref: scu.445040

Heritable Bank Plc (Administrators of) v The Winding Up Board of Landsbanki Islands Hf: SCS 28 Sep 2011

The appellant (H) had claimed in the responder’s (L) insolvency proceedings in Iceland. Their claim had been rejected by L’s winding-up board, and then withdrawn. L then claimed in H’s own insolvency in Scotland, saying that within the EEA, and under the Directive, the decision in Iceland was binding on the Scots proceedings. That argument had been accepted at the Outer House. H appealed.
Held: H’s appeal succeeded.

Judges:

Lord President Hamilton, Lord Mackay of Drumadoon and Lord Marnoch

Citations:

[2011] ScotCS CSIH – 61, [2012] 2 BCLC 21, 2012 SLT 247, 2011 GWD 35-728, 2012 SC 209

Links:

Bailii

Citing:

Appeal from – The Winding Up Board of Landsbanki Islands Hf v Mills and Others OHCS 20-Jul-2010
The claimants had made claims in the insolvency of Landsbanki in Iceland. There had been a ruling by Landsbanki’s winding-up board in those Icelandic winding-up proceedings that to the extent that it was final and binding in Iceland, it must also be . .
Cited – Adams v National Bank of Greece HL 1961
Questions of interpretation and enforcement of contracts are resolved by reference to the proper law. Although debt under a contract whose proper law is the law of another jurisdiction may, for the purposes of Scots law, be discharged by insolvency . .

Cited by:

Appeal from – Heritable Bank Plc, Administrators of v The Winding-Up Board of Landsbanki Islands Hf SC 27-Feb-2013
A claim by Heritable (H) in Landsbanki’s (L) insolvency had been rejected and then withdrawn before the Icelandic court, and L now appealed against rejection of its own assertion that that Icelandic decision was binding also within its own claim . .
Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency, European

Updated: 20 September 2022; Ref: scu.444856

Johnson and Another v Davis and Another: CA 18 Mar 1998

The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part VIII of the Insolvency Act 1986 by a co-obligee who was liable, jointly with the appellants, under the same covenant.’
Held: There is no rule of law that one joint debtor (not joint and several) may not be released from debt by the individual voluntary arrangement of another.
Chadwick LJ observed that: ‘The statutory hypothesis is that the person who had notice of and was entitled to vote at the meeting is party to an arrangement to which he has given his consent . . Unlike the earlier legislation, section 260(2) of the Act of 1986 does not purport, directly, to impose the arrangement on a dissenting creditor whether or not he has agreed to its terms; rather, he is bound by the arrangements as the result of a statutory hypothesis. The statutory hypothesis requires him to be treated as if he had consented to the arrangement.’ Accordingly, questions as to the effect of the arrangement on sureties . . were to be answered by treating the arrangement as consensual; that is to say, by construing its terms as if they were the terms of a consensual agreement between the debtor and all those creditors who, under the statutory hypothesis, must be treated as being consenting parties.’

Judges:

Chadwick, Kennedy, Ward LJJ

Citations:

Times 31-Mar-1998, Gazette 13-May-1998, [1999] Ch 117, [1998] EWCA Civ 483, [1998] 2 All ER 649

Links:

Bailii

Statutes:

Insolvency Act 1986 260(2)

Jurisdiction:

England and Wales

Citing:

Cited – Deanplan Limited v Mahmoud 1992
The court considered whether a release of one of joint contractors released the other contractors. He said: ‘An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released . .
Cited – RA Securities v Mercantile Credit 1995
The effect of an individual voluntary arrangement was not such as to release solvent co-debtors under the rule of law that the release of one of two or more joint debtors has the effect of releasing the other or others. . .
Applied – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .

Cited by:

Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Damages, Contract

Updated: 19 September 2022; Ref: scu.443849

New Cap Reinsurance Corporation Ltd and Another v Grant and Others: CA 9 Aug 2011

The court was asked whether Mr Gibbons, liquidator of New Cap Reinsurance Corporation Ltd (New Cap), could enforce in England an order which provided, among other things, for the payment of sums of money by the Defendants to New Cap, which he obtained in the courts of New South Wales.

Judges:

Mummery, Lloyd, McFarlane LJJ

Citations:

[2011] EWCA Civ 971, [2012] Ch 538, [2011] BPIR 1428, [2012] 2 WLR 1095, [2012] Bus LR 772, [2011] BCC 937, [2012] 1 All ER 755, [2011] CP Rep 48, [2012] 1 All ER (Comm) 1207

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – In re New Cap Reinsurance Corporation Ltd ChD 15-Mar-2011
. .

Cited by:

Appeal from – Rubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
Lists of cited by and citing cases may be incomplete.

Insurance, Insolvency

Updated: 17 September 2022; Ref: scu.442621

Perpetual Trustee Company Ltd and Another v BNY Corporate Trustee Services Ltd and Others: CA 6 Nov 2009

The court considered the extent of the so-called anti-deprivation rule which would avoid a contract designed to deprive creditors of an asset on the insolvency of a party to the contract. The claimant appealed a finding that the rule did not apply to synthetic collateralised debt obligations.
Held: A transaction completed before the insolvency act need not be caught. The particular contractual arrangements here did not fall within the anti-deprivation rule, and the provisions were valid. The Collateral was acquired with money provided by the Noteholders and that the change in priorities was included to ensure that the Noteholders were repaid out of those assets.

Judges:

Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Longmore and Lord Justice Patten

Citations:

[2009] EWCA Civ 1160, Times 16-Nov-2009, [2010] BCC 59, [2010] 3 WLR 87, [2010] 1 BCLC 747, [2010] Bus LR 632, [2010] BPIR 174, [2010] Ch 347

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ex parte Jay, in re Harrison CA 26-Feb-1880
A builder agreed with the owner of the land on which he was to build houses that upon his bankruptcy all the building materials on the land should become absolutely forfeited to the owner. The builder than charged the materials, but this was not . .
Appeal from – Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd and Another ChD 28-Jul-2009
The parties had entered into complicated financial arrangements effectively providing credit insurance. On the insolvency of Lehman brothers, a claim was made.
Held: The contractual provisions were effective as a matter of English law and, in . .

Cited by:

Appeal From – 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 . .
See Also – Perpetual Trustee Company Ltd v BNY Corporate Trustee Services Ltd and Another ChD 17-Nov-2009
. .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Insolvency

Updated: 17 September 2022; Ref: scu.377779

Ex parte Jay, in re Harrison: CA 26 Feb 1880

A builder agreed with the owner of the land on which he was to build houses that upon his bankruptcy all the building materials on the land should become absolutely forfeited to the owner. The builder than charged the materials, but this was not registered as a bill of sale. The builder was then made bankrupt, and his trustee and the landowner disputed the right to the materials.
Held: The agreement was void, as it violated or was ‘in fraud of’ the bankruptcy laws. Upon bankruptcy, the bankrupt’s property was really no longer his own, and becomes the property of his trustee in bankruptcy.
Cotton LJ said: ‘though the contract is good as between the parties to it, it is on principle void in the event of the builder’s bankruptcy’ and ‘there cannot be a valid contract that a man’s property shall remain his until his bankruptcy, and on the happening of that event shall go over to someone else, and be taken away from his creditors.’
James LJ said: ‘a simple stipulation that, upon a man’s becoming bankrupt, that which was his property up to the date of the bankruptcy should go over to some one else and be taken away from his creditors, is void as being a violation of the policy of the bankrupt law.’

Judges:

Cotton, James LJJ

Citations:

(1880) 14 ChD 19, [1880] UKLawRpCh 60

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Perpetual Trustee Company Ltd and Another v BNY Corporate Trustee Services Ltd and Others CA 6-Nov-2009
The court considered the extent of the so-called anti-deprivation rule which would avoid a contract designed to deprive creditors of an asset on the insolvency of a party to the contract. The claimant appealed a finding that the rule did not apply . .
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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 17 September 2022; Ref: scu.374117

T and N Ltd and others v In the Matter of the Insolvency Act 1986 (Conflict of Law): ChD 21 Dec 2005

Judges:

David Richards J

Citations:

[2005] EWHC 2990 (Ch), [2006] 3 All ER 755, [2006] 1 WLR 1792

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

See Also – T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others ChD 9-May-2003
T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their . .
See Also – Re Tand N Ltd and Others ChD 21-Oct-2004
. .
See Also – Alexander Forbes Trustee Services Limited and Another v Jackson and Others ChD 2-Nov-2004
. .
See Also – Freakley, Gleave, Squires, T&N Limited v Centre Reinsurance International Company, Muenchener Rueckversicherungs-Gesellschaft, European International Reinsurance Company Limited, Curzon Insurance Limited ChD 26-Nov-2004
. .
See Also – T and N Ltd and Others, Re the Insolvency Act 1986 (Communications) ChD 8-Dec-2004
. .
See Also – In re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
See Also – T and N Ltd and Others, In the Matter of the Insolvency Act 1986 ChD 21-Dec-2005
. .

Cited by:

See Also – In the Matter of T and N Limited and others ChD 12-Apr-2006
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 17 September 2022; Ref: scu.236618