Category: Insolvency

T and N Ltd and Others, Re the Insolvency Act 1986 (Communications): ChD 8 Dec 2004

Citations:

[2004] EWHC 2878 (Ch)

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
. .

Cited by:

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 . .
Cited – T and N Ltd and Others, In the Matter of the Insolvency Act 1986 ChD 21-Dec-2005
. .
See Also – T and N Ltd and others v In the Matter of the Insolvency Act 1986 (Conflict of Law) ChD 21-Dec-2005
. .
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.226184

Gita Ram v Baskinder Ram,Solinder Ram, Monder Ram and Maurice William Russell: CA 5 Nov 2004

A bankrupt had, before his bankruptcy disposed of his share in a house at an undervalue. His wife appealed an order that the share disposed of should vest entirely in the trustee in bankruptcy. Matrimonial proceedings had also been commenced.
Held: The wife was seeking effectively not re-instatement, but the creation of a position which would better allow her own matrimonial claim. The rules required the position to be restored. Any automatic proiotity given to the trustee in bankruptcy was not an infringement of the wife’s human rights. Wider interests were in the balance. Nevertheless rule 1293) still required revision.

Judges:

Potter, Lord Justice Potter Lord Justice Buxton Lord Justice Carnwath

Citations:

[2004] EWCA Civ 1452, [2005] 2 FLR 63

Links:

Bailii

Statutes:

Insolvency Act 1986 305 423

Jurisdiction:

England and Wales

Citing:

Cited – Woodley v Woodley (2) CA 12-Apr-1993
A stay of execution of an order against matrimonial assets was not defeated by bankruptcy. As to the interplay of the Insolvency Rules and matrimonial proceedings.
Balcombe LJ said: ‘I cannot leave this case without saying something about the . .
Cited – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
Cited – Chohan v Saggar and Another CA 27-Dec-1993
The word ‘and’ in sections 423(2)(a) and 423(2)(b) is to be read conjunctively not disjunctively. Section 238(3) is to be interpreted as requiring restoration of the former position ‘as far as possible’ or ‘as far as practicable’, and that . .
Cited – H M Customs and Excise and Another v MCA and Another; A v A; Re MCA CA 22-Jul-2002
The husband and wife divorced and a property adjustment order applied for. The husband had been convicted and a drugs proceeds order made under the 1994 Act. The order had not been satisfied, and the receiver applied for money from the matrimonial . .
Cited – Beyeler v Italy ECHR 5-Jan-2000
The concept of ‘possessions’ in Art. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law, and requires the examination of the question whether the . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Inze v Austria ECHR 28-Oct-1987
Art 14 was engaged in respect of discrimination over future interests despite Marckx. The case turned on what singular provisions of Austrian inheritance law, whereby the illegitimate claimant had some, but incomplete, rights on his mother’s . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts, Human Rights

Updated: 17 September 2022; Ref: scu.219208

Morphitis v Bernasconi and others: CA 5 Mar 2003

The appellants had been directors of a company which fell into difficulties. A new company was begun, and traded, and the other continued for a year before being wound up by a landlord. The lease was disclaimed. Only the landlord lost out. He claimed that the directors had continued to trade with intent to defraud. The directors appealed.
Held: The section required not just that the claimant had been defrauded, but also that that had been the intention of the directors. That was not established in this case.

Judges:

Aldous, Chadwick, LJJ Munby J

Citations:

Times 12-Mar-2003, [2003] EWCA Civ 289, Gazette 15-May-2003, [2003] BPIR 973, [2003] 2 BCLC 53, [2003] Ch 552, [2003] 2 WLR 1521, [2003] BCC 540

Links:

Bailii

Statutes:

Insolvency Act 1986 213 216, Companies Act 1948 332(1)

Jurisdiction:

England and Wales

Citing:

Cited – In re Gerald Cooper Chemicals Ltd ChD 1978
A business might be found to have been conducted in such a way as to defraud creditors even though only one act of defrauding had been found and one creditor defrauded. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 16 September 2022; Ref: scu.180038

Kerry Foods Ltd v A Creber and others: EAT 11 Oct 1999

Where a receiver of a company dismissed the employees and then transferred the business to a purchaser, that amounted to an unfair dismissal because it was a TUPE transfer, even though the manufacturing base also moved. The company was liable to the employees. Neither whether there was an economic technical or organisational reason nor the unfairness of the dismissal arose.
EAT Transfer of Undertakings – Transfer

Judges:

The Honourable Mr Justice Morison (President)

Citations:

Gazette 03-Feb-2000, [2000] IRLR 10, EAT/1379/97, [1999] UKEAT 1379 – 97 – 1110, EAT/939/98, [2000] ICR 556

Links:

Bailii, EAT

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Trade Union and Labour Relations (Consolidation) Act 1992 188

Jurisdiction:

England and Wales

Cited by:

Cited – Heald Nickinson Solicitors v Summers and others EAT 21-May-2002
The firm of solicitors appealed an order in which they had been substituted as defendants to a claim for unfair dismissal. They said they had been given no opportunity to object. They had taken over part of a firm which had got into difficulties and . .
Cited – Alamo Group (Europe) Ltd v Tucker and Another EAT 24-Feb-2003
The tribunal was asked whether Regulation 5 of the 1981 Regulations have the effect of transferring to the transferee the duties and liabilities imposed on the employer under Regulations 10 and 11? The Respondent (Alamo) appeals from the decision . .
Not Followed – Transport and General Workers Union v James Mckinnon, J R (Haulage) Ltd, John Maitland and Sons, Bibby Distribution Services EAT 29-May-2001
EAT Transfer of Undertakings – Transfer. . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 16 September 2022; Ref: scu.171701

Sharples v Places for People Homes Ltd: CA 15 Jul 2011

The court was asked as to the effect of a person’s insolvency on the right of a landlord to obtain an order for possession of a dwelling let on an assured tenancy on the ground of rent arrears.

Judges:

Mummery, Wilson, Etherton LJJ

Citations:

[2011] EWCA Civ 813

Links:

Bailii

Jurisdiction:

England and Wales

Housing, Insolvency

Updated: 16 September 2022; Ref: scu.441953

T and N Ltd and Others, In the Matter of the Insolvency Act 1986: ChD 21 Dec 2005

Judges:

David Richards J

Citations:

[2005] EWHC 2991 (Ch), [2006] Lloyd’s Rep IR 370

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
. .
Cited – 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 . .

Cited by:

See Also – T and N Ltd and others v In the Matter of the Insolvency Act 1986 (Conflict of Law) ChD 21-Dec-2005
. .
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: 16 September 2022; Ref: scu.236619

In the Matter of Pectel Limited; O’Neill; O’Neill v Phillips; Phillips and Pectel Limited: CA 1 May 1997

The petitioners sought either the purchase of their shares, or the winding up of the company alleging unfair prejudice in the management of the company. The defendants argued that what was complained of did not fall within section 459 since it was not complained of in their capacity as shareholders.
Held: Though the petitioner was not entitled to insist on participating, the majority shareholders were to be obliged to purchase his minority interest with no discount for it being a minority.

Citations:

[1997] EWCA Civ 1591

Statutes:

Insolvency Act 1986, Companies Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Ebrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd) HL 3-May-1972
Unfair Prejudice to Minority Shareholder
A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or . .
Mentioned – Re a company (No.00477 of 1986) 1986
. .
Mentioned – Tay Bok Choon v Tahanson Sdn Bhd PC 1987
A participant in the company was given the right to be involved in the management until a change should become necessary for some other reason.
In cases of fraud, direct evidence may be rare and circumstantial evidence may have to suffice,
Cited – Re JE Cade and Son Ltd 1992
The petitioner claimed unfair prejudice under section 459. The company was a licensee of a farm and he sought to recover possession.
Held: The petition failed. In reality he was seeking to promote his interests as freeholder in the land, and . .
Cited – In re Bird Precision Bellows Ltd ChD 1984
The court considered the method of valuation of a minority shareholding in a forced purchase by the other shareholders. Nourse J said: ‘I would expect that in a majority of cases where purchase orders are made under section 75 in relation to . .

Cited by:

Appeal from – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 16 September 2022; Ref: scu.141987

RC Brewery Ltd v HM Revenue and Customs: ChD 10 May 2013

The company sought an order restraining advertising of a winding up petition issued by the respondent who sought payment of substantial arrears of unpaid beer duty and penalties.

Judges:

Warren J

Citations:

[2013] EWHC 1184 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 8127

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 15 September 2022; Ref: scu.509267

Joujou and Others v Masri: CA 28 Jun 2011

The appellants appeared to have taken steps over some time to avoid satisfying very substantial court judgments against them. They now appealed against a receivership order made against two companies under their control.

Judges:

Arden, Toulson, Rimer LJJ

Citations:

[2011] EWCA Civ 746

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Litigation Practice

Updated: 15 September 2022; Ref: scu.441235

Vickers v Jackson: CA 24 May 2011

The claimant sought the discharge of his property from a charge in favour of the respondent. The respondent now appealed against the setting aside of the charge as a sham, saying that it had been entered into by the claimant as a ruse to defeat his creditors, and that he should not be allowed to take advantage of his own unlawful acts.
Held: The appeal failed: ‘Mr Jackson is not entitled to any remedy under the charge because no money is due under it. It is not and never can be security for any debt. Once that is established, Mr Vickers is entitled as owner of the property to have the entries relating to the charge removed from the register. Otherwise, as the judge said, his present creditors would be at least misled and possibly adversely affected by the presence on the register of entries relating to a charge which in reality secures nothing.’

Judges:

Maurice Kay, Carnwath, Lloyd LJJ

Citations:

[2011] EWCA Civ 725, [2011] 34 EG 104

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Contract

Updated: 15 September 2022; Ref: scu.441234

White v Davenham Trust Ltd: CA 28 Jun 2011

Appeal against order reinstating statutory demand.

Judges:

Maurice Kay VP, Lloyd, Elias LJJ

Citations:

[2011] BPIR 1187, [2011] EWCA Civ 747, [2011] NPC 68, [2011] 27 EG 76, [2011] Bus LR 1443

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland CA 1989
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice . .
Appeal from – White v Davenham Trust Ltd ChD 1-Nov-2010
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 15 September 2022; Ref: scu.441237

Pressure Coolers Ltd v Molloy and Others: EAT 9 Jun 2011

EAT TRANSFER OF UNDERTAKINGS – Insolvency
The issue in these appeals is who, in law, should pay the Claimant employee’s basic award and notice pay following his unfair and wrongful dismissal by the transferee after a ‘pre-pack’ TUPE transfer. Consideration was given to the meaning and effect of regulation 8(3) of TUPE in circumstances where, following the transfer of a business in administration as a going concern, the employee is then dismissed by the transferee. The ET’s decision, on review, that in these circumstances the transferee, and not the Secretary of State, was liable for these sums under the relevant statutory scheme in Part XII ERA was upheld.
Criticisms were also made of the procedure adopted at review in this case. The ET’s decision simply to substitute the original judgments on liability and remedy with new judgments, without any reference to the review, was found to be unhelpful and the practice should not therefore be followed.

Judges:

Cox J

Citations:

[2011] UKEAT 0272 – 10 – 0906

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Insolvency

Updated: 15 September 2022; Ref: scu.441171

In re Saunders (A Bankrupt): ChD 1997

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

Judges:

Lindsay J

Citations:

[1997] Ch 60

Statutes:

Insolvency Act 1986 130(2) 285

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Litigation Practice, Insolvency

Updated: 14 September 2022; Ref: scu.226025

Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd and Another: ChD 10 Jul 2001

MMI were members of the London Stock Exchange, and accordingly held one share in that non-profit making institution. The share was valueless. Anticipating losing their membership and so the share, and also the demutualisation, the share was to be transferred to a third party. At that point it would become worth andpound;3 million. Because the ownership of the share was merely an incident of membership, there was no conflict between the rules which deprived it both of membership and the share, and the rules which invalidated the transfer of assets of an insolvent person. Until the de-mutualisation, the share remained worthless, and the insolvency rules did not bite.

Judges:

Neuberger J

Citations:

[2002] 1 WLR 1150, [2001] EWHC 1052 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bombay Official Assignee v Shroff PC 1932
The bankrupt had been a member of the Bombay stock exchange. His share had been forfeit. The trustee claimed the share. The official assignee contended that his members card or the value thereof vested in him as the assignee in the insolvency, . .

Cited by:

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.

Company, Financial Services, Insolvency, Contract

Updated: 14 September 2022; Ref: scu.166178

In re Sea Containers Services Ltd: ChD 19 Sep 2012

Judges:

Mr Justice Hildyard

Citations:

[2012] EWHC 2547 (Ch), Gazette

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 September 2022; Ref: scu.464606

Sigma Finance Corporation, Re; (in administrative receivership): SC 29 Oct 2009

The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the deed, looking at the ‘landscape of the instrument as a whole’ and interpretations given. The Court emphasised the need, when looking at a complex series of agreements, to construe an agreement which was part of a series of agreements by taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme.’ The appeal was allowed (Lord Walker dissenting).
Lord Mance said: ‘In my opinion, the conclusion reached below attaches too much weight to what the courts perceived as the natural meaning of the words of the third sentence of cl 7.6, and too little weight to the context in which that sentence appears and to the scheme of the STD as a whole. Lord Neuberger was right to observe that the resolution of an issue of interpretation in a case like the present is an iterative process, involving ‘checking each of the rival meanings against the other provisions of the document and investigating its commercial consequences’ . . Like him, I also think that caution is appropriate about the weight capable of being placed on the consideration that this was a long and carefully drafted document, containing sentences or phrases which it can, with hindsight, be seen could have been made clearer, had the meaning now sought to be attached to them been specifically in mind . . Even the most skilled drafters sometimes fail to see the wood for the trees, and the present document on any view contains certain infelicities, as those in the majority below acknowledged (see Sales J ([2009] All ER (D) 204 (Apr) at [37]-[40]), Lloyd LJ ([2008] EWCA Civ 1303 at [44], [49]-[52], [53]), and Rimer LJ (at [90])). Of much greater importance in my view, in the ascertainment of the meaning that the STD would convey to a reasonable person with the relevant background knowledge, is an understanding of its overall scheme and a reading of its individual sentences and phrases which places them in the context of that overall scheme. Ultimately, that is where I differ from the conclusion reached by the courts below. In my opinion, their conclusion elevates a subsidiary provision for the interim discharge of debts ‘so far as possible’ to a level of pre-dominance which it was not designed to have in a context where, if given that pre-dominance, it conflicts with the basic scheme of the STD’.
Lord Collins pointed out that the trust deed in that case concerned ‘debt securities’ issued to ‘a variety of creditors, who hold different instruments, issued at different times, and in different circumstances’ and said: ‘Where a security document secures a number of creditors who have advanced funds over a long period it would be quite wrong to take account of circumstances which are not known to all of them. In this type of case it is the wording of the instrument which is paramount. The instrument must be interpreted as a whole in the light of the commercial intention which may be inferred from the face of the instrument and from the nature of the debtor’s business’.

Judges:

Lord Hope Deputy President, Lord Scott, Lord Walker, Lord Mance, Lord Collins

Citations:

[2010] 1 All ER 571, [2010] BCC 40, UKSC 2009/0143, [2009] UKSC 2

Links:

Bailii Summary, SC Summary, SC, Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

At First Instance – Sigma Finance Corporation, Re Insolvency Act 1986 ChD 7-Nov-2008
. .
Appeal From – Re Sigma Finance Corp CA 25-Nov-2008
. .
Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Cited – Miramar Maritime Corporation v Holborn Oil Trading Limited (‘The Miramar’) HL 1984
A bill of lading incorporated a charterparty. The question was whether clauses in the charterparty or bill of lading prevailed. The charter clause incorporated a demurrage clause making the charterer’s laible for demurrage, and the owners asserted . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – West Bromwich Building Society v Wilkinson HL 30-Jun-2005
The Society had taken possession of a property in 1989. It located the defendants many years later and sought payment of the excess after deduction of the proceeds of sale, and for interest. The borrowers claimed the debt was expired by limitation . .

Cited by:

Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – LBG Capital No 1 Plc and Another v BNY Mellon Corporate Trustee Services Ltd CA 10-Dec-2015
The court was asked whether Issuers were entitled to redeem, pursuant to their terms, certain contingent convertible securities.
Held:
The reference to ‘the Consolidated Core Tier 1’ in para (2) of the Definition should, in the events . .
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 13 September 2022; Ref: scu.377320

McDougalls Catering Foods Limited v BSE Trading Limited: CA 2 May 1997

The appellant had guaranteed the tenant’s obligations under an underlease. The tenant having become insolvent, the landlord sought to enforce the guarantee. The appellant said that the landlord had accepted a surrender of the underlease. The landlord had taken possession proceedings after the tenant had left and squatters had moved onto the land. The landlord also sought the cost of the possession proceedings.
Held: Where possession is unequivocally offered and retaken, it will, without more, be inequitable for the landlord to deny that the tenancy has ended, because he cannot at one and the same time have both possession and continuing rent under the tenancy. Aldous LJ said that the court’s task is to ascertain from all the facts whether the landlord’s conduct: ‘did in fact amount to an unequivocal acceptance of cessor of the tenancy such that it would be inequitable for the landlord to dispute that the tenancy ceased’.

Judges:

Aldous LJ

Citations:

[1997] EWCA Civ 1616, [1998] 2 EGLR 65

Jurisdiction:

England and Wales

Cited by:

Cited – Artworld Financial Corporation v Safaryan and Others CA 27-Feb-2009
The parties disputed whether the landlord had accepted the surrender of a lease. The tenant had handed in the keys. The landlord claimed rent for the subsequent period. The court had found surrender by operation of law, the landlord taking several . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 12 September 2022; Ref: scu.142012

The Commissioners for Customs and Excise, The Arena Corporation Limited v The Arena Corporation Limited / Schroeder: ChD 12 Dec 2003

Judges:

Mr Justice Lawrence Collins

Citations:

[2003] EWHC 3032 (Ch), [2004] BPIR 375

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – Re Autotech Design Ltd, HMRC v Autotech Design Ltd ChD 2006
Michael Briggs QC summarised the approach to be adopted by the court at the hearing of for the appointment of an interim liquidator pending the hearing of an insolvency petition brought by the Revenue: ‘Although the formulations of the approach to . .
Cited – Revenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
Appeal from – Customs and Excise v Jack Baars Wholesale and others CA 3-Nov-2004
. .
Lists of cited by and citing cases may be incomplete.

VAT, Insolvency

Updated: 12 September 2022; Ref: scu.188918

New Zealand Loan and Mercantile Agency Company Limited v Christina Morrison: PC 15 Dec 1897

(Victoria)

Judges:

Lord Davey

Citations:

[1898] AC 349, [1897] UKPC 54

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Antony Gibbs and Sons v La Societe Industrielle et Commerciale des Metaux CA 1-Jul-1890
The defendant had agreed to buy copper to be delivered in England by the plaintiff. The defendant refused to accept the copper and so was liable in damages to the plaintiff. The defendant, a French company, was placed in judicial liquidation in . .

Cited by:

Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Cited – National Bank of Greece and Athens v Metliss HL 1957
The National Bank of Greece had been created under the law of Greece. By a Greek decree, the bank was dissolved and, by the same decree, amalgamated with another bank into a new banking corporation under the name of ‘National Bank of Greece and . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 September 2022; Ref: scu.659389

In re Sky Land Consultants Plc: ChD 3 Mar 2010

a land-banking arrangement was held to amount to a collective investment scheme within section 235. The company purported to change its practices following intervention by the FCA. The changes were held by the judge insufficient to take it outside section 235. On two sites, the Crewe land and the Winterton land, involving sales respectively of some 56 and 98 individual plots. The company’s option agreements for each site stipulated the terms of any future transfers of individual plots, including a restrictive covenant precluding residential development without the consent of Sky Land. In the first period investors were given the clear understanding that the company would seek to obtain planning permission for each site as a whole, and would bear the full cost of doing so. Its website identified by name its planning consultants and planning solicitors. The judge noted the common expectation (though not formally agreed) that in the meantime the land would remain ‘in the occupation of the original owner and would continue to be farmed’. The FCA intervened and the company agreed to write to investors indicating that the restrictions would be removed, that Sky Land ‘cannot and will not’ play any further role in the development of the site, and that the individual owners would need to make their own arrangements to realise the value of the site as a whole.
Held: The statements had not been fulfilled. The company had continued as before, representing to investors that it would deal with planning and sale, and undertaking activities for that purpose
Richards J said that they fell within section 235: ‘A scheme whereby investors purchase individual plots within a site on the shared understanding that the company will seek planning permission and market the site including the plots are clearly capable of being ‘arrangements’ . . Each of these requirements [of section 235(1)] appears to be satisfied: (i) the arrangements concern land sold off in small plots to investors, (ii) the investors become owners of the individual plots and (iii) the purpose of the arrangements is to receive profits arising from the sale of the individual plots as parts of the larger site.’
and ‘I consider ‘the property’ to be the land comprising the individual plots sold to investors. It is that land, very probably as part of a larger site which includes areas retained by the original owner and areas acquired by the company, for which planning permission and a buyer would be sought by the company. The investors participate by each becoming an owner of part of the property. While it is legally possible for an investor to sell his plot on its own, that is not what is intended or likely to happen. The purpose is to obtain planning permission, for, and to sell, the property as a whole.’

Judges:

Richards J

Citations:

[2010] EWHC 399 (Ch)

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000 235

Jurisdiction:

England and Wales

Cited by:

Cited – Asset Land Investment Plc and Another v The Financial Conduct Authority SC 20-Apr-2016
Proceedings were brought against the appellant’s associated parties, alleging that they had carred on regulated activities without authorisation, contrary to section 19 of the2000 Act. They had offered various plots of land for sale, suggesting they . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Financial Services

Updated: 12 September 2022; Ref: scu.439794

Rubin and Another v Eurofinance Sa and Others: CA 20 Jul 2010

The Court considered whether the principle of universality in insolvency proceedings enabled the court to enforce a judgment in personam which had been given in New York against the defendants in and for the purposes of bankruptcy proceedings in New York, notwithstanding that the defendants had not submitted to the jurisdiction of the New York court.
Held: The principle had that effect:
‘The ordinary rules for enforcing, or more precisely not enforcing, foreign judgments in personam do not apply to bankruptcy proceedings’
‘For the reasons we set out in writing the appeal is allowed; the cross-appeal is dismissed; paragraphs 4 to 6 of the order of Mr Nicholas Strauss QC are set aside; paragraphs 3 and 5 of the judgment of the United States Bankruptcy Court will be enforced; but we are going to give a stay for 28 days to allow them to go off to the Supreme Court and see if they can get permission. Order provides for costs to be paid by the respondent, to pay back some money they paid on costs already.

Judges:

Ward, Wilson, Henderson LJJ

Citations:

[2010] EWCA Civ 1047

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Rubin and Another v Eurofinance Sa and Others ChD 31-Jul-2009
. .

Cited by:

Order – Rubin and Another (Joint Receivers and Managers of The Consumers Trust) v Eurofinance Sa and Others CA 30-Jul-2010
. .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, International

Updated: 11 September 2022; Ref: scu.424932

Rubin and Another v Eurofinance Sa and Others: ChD 31 Jul 2009

Judges:

Nicholas Strauss QC J

Citations:

[2009] EWHC 2129 (Ch), [2010] 1 All ER (Comm) 81, [2009] BPIR 1478

Links:

Bailii

Statutes:

Trustee Act 1925, Cross-Border Insolvency Regulations 2006

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rubin and Another v Eurofinance Sa and Others CA 20-Jul-2010
The Court considered whether the principle of universality in insolvency proceedings enabled the court to enforce a judgment in personam which had been given in New York against the defendants in and for the purposes of bankruptcy proceedings in New . .
Appeal from – Rubin and Another (Joint Receivers and Managers of The Consumers Trust) v Eurofinance Sa and Others CA 30-Jul-2010
. .
At First Instance – 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.

Insolvency, International

Updated: 11 September 2022; Ref: scu.374033

Lehman Brothers International (Europe) (No 2), Re: ChD 21 Aug 2009

Parties said that assets of the insolvent company were held by it in trust for them.
Held: The court had no jurisdiction to sanction a scheme of arrangement proposed by the administrators between the company and former clients who had proprietary interests in the assets held by the company or on its behalf.

Judges:

Blackburne J

Citations:

[2009] EWHC 2141 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986, Companies Act 2006

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lehman Brothers International (Europe), Re Insolvency Act 1986 CA 6-Nov-2009
The insolvent company held assets for its clients. The liquidators proposed a scheme of arrangement which would allow them protection.
Held: The 2006 Act was to allow arrangements between a company and its creditors. The company’s former . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 11 September 2022; Ref: scu.374037

Cape Plc and Others, Re Companies Act 1985: ChD 16 Jun 2006

The court was asked to sanction a scheme of arrangements, and particularly to approve a proposed scheme which itself contained the power to make amendments to the scheme.
Held: The court did have power to sanction such a proposed scheme of arrangement, though it would use its power only in unusual cirumstances. This case was such a circumstance.

Judges:

David Richards J

Citations:

[2006] EWHC 1446 (Ch), Times 05-Jul-2006

Links:

Bailii

Statutes:

Companies Act 1985 425

Jurisdiction:

England and Wales

Citing:

Cited – Re Alabama, New Orleans, Texas and Pacific Junction Railway Company CA 1891
The question is whether a scheme of arrangement: ‘was at least so far fair and reasonable, as that an intelligent and honest man, who is a member of that class [to whom the scheme is put], and acting alone in respect of his interest as such a . .
Cited – In re British Aviation Insurance Company Ltd ChD 21-Jul-2005
Complaint was made that the turn-out at the meeting to approve the proposed scheme of arrangement was about 15% representing just over half in value of the total claims, judged in each case by reference to ‘actual or pending’ claims. Counsel for the . .
Cited – In re Osiris Insurance Ltd ChD 1991
The turn-out at the creditors meeting was low in number (35 out of 971) but creditors with claims worth about 41% of the total value attended the meeting.
Held: Neuberger J said: ‘It is true that the numbers of those who voted was pretty small . .
Cited – In re English, Scottish and Australian Chartered Bank 1893
Vaughan Williams J said: ‘One knows that where there is a liquidation of one concern the general principle is – ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to . .
Cited – Rothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 11 September 2022; Ref: scu.242576

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 majority shareholder in the Isle of Man company, but had no involvement in the New York proceedings and resisted the vesting order.
Held: The appeal failed. If the New York order was in rem, then it could not affect title to shares in the Isle of Man. If in personam, the court had a wide common law discretion, but the action had been brought against the wrong party. However the order was neither: ‘The purpose of bankruptcy proceedings . . is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. That mechanism may vary in its details.’
The Manx court had jurisdiction to assist the committee of creditors, as appointed representatives under the Chapter 11 order, to give effect to the plan. As there was no suggestion of prejudice to any creditor in the Isle of Man or local law which might be infringed, there was no discretionary reason for withholding such assistance.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hutton, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2006] UKPC 26, [2007] 1 AC 508, [2006] 3 WLR 689

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Solomons v Ross 1764
A firm in Amsterdam was declared bankrupt and assignees were appointed. An English creditor brought garnishee proceedings in London to attach andpound;1200 owing to the Dutch firm.
Held: The court decreed that the bankruptcy had vested all the . .
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – In re Lines Bros Ltd CA 1982
The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the . .
Cited – Re Davidson’s Settlement Trusts 1873
English moveables may vest automatically in a foreign trustee or assignee where the bankrupt submitted to this jurisdiction. . .
Cited – 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 . .
Cited – Borland’s Trustee v Steel Brothers 1901
Farwell J defined a share: ‘a share is the interest of a shareholder in the company measured by a sum of money, for the purpose of liability in the first place, and of interest in the second’. . .
Cited – Re Oceanic Steam Navigation Co Ltd 1939
In the case of an insolvent company, in which the shareholders have no interest of any value, the court may sanction a scheme which leaves them with nothing. . .

Cited by:

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 – 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 – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 September 2022; Ref: scu.241830

Wight, Pilling, Mackey v Eckhardt Marine GmbH: PC 14 May 2003

(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Held: The insolvency discharged the debts and the claimants had no case. The intention had been to isolate and preserve the Bangladeshi debts against the liquidation. The winding up order had had no effect on the respondent’s debt, its situs or its proper law. It had been provable even though the lex situs and proper law were both in Bangladesh.
Lord Hoffmann said: ‘The winding up leaves the debts of the creditors untouched. It only effects the way in which they can be enforced. When the order is made, ordinary proceedings against the company are stayed . . The creditors are confined to a collective enforcement procedure that results in pari passu distribution of the company’s assets. The winding up does not either create new substantive rights in the creditors or destroy the old ones. Their debts, if they are owing, remain debts throughout. They are discharged by the winding up only to the extent that they are paid out of dividends. But when the process of distribution is complete, there are no further assets against which they can be enforced. There is no equivalent of the discharge of a personal bankrupt which extinguishes his debt.’

Judges:

Lord Hoffmann, Lord Nolan, Lord Hobhouse of Woodborough, Lord Scott of Foscote Lord Walker of Gestingthorpe

Citations:

[2003] UKPC 37, Times 06-Jun-2003, [2004] 1 AC 147

Links:

PC, Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Buhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .
Cited – In re Banque des Marchands de Moscou (Koupetschesky) (No 2) CA 1954
A Russian bank operated in Russia. It had no branch in England, but did have an account, in credit, with a bank in London. On December 15, 1917 the bank was nationalized by a decree of the soviet government. On December 16th 1917, two documents were . .
Cited – Re Banque des Marchands de Moscou (Koupetschesky) 1952
. .
Cited – In re Russian Bank for Foreign Trade 1933
Soviet legislation involved an extinguishment of the rights and obligations of the commercial banks and the creation of equivalent obligations on the part of a new State Bank. . .
Cited – In re United Railways of the Havana v Regla Warehouses Ltd CA 1960
There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
Cited – F and K Jabbour v Custodian of Israeli Absentee Property 1953
The court was asked as to the effect of foreign regulations on the ownership of a right of action under an insurance policy, and for that purpose examined whether the plaintiff’s claim against the insurance company was a ‘mere right to claim . .
Cited – In re Humber Ironworks and Shipbuilding Co 1869
The assets of a company held on the statutory trusts should be distributed as if they had all been collected and distributed on the date of the winding up order: ‘I think the tree must lie as it falls; that it must be ascertained what are the debts . .

Cited by:

Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
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 – 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 – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking, Jurisdiction

Updated: 11 September 2022; Ref: scu.183086

In re United Railways of the Havana v Regla Warehouses Ltd: CA 1960

There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the Cuban government and the company was put into liquidation in England. The liquidators rejected a proof by the trustees for the payments due under the lease on the ground that the Cuban decree had transferred liability to the Cuban government. The court did not accept that the decree had this effect, but, for argument considered whether it would have been effective to discharge the company’s liability. This depended on whether one applied the lex situs of the debt (Cuba) or the proper law of the lease (Pennsylvania).
Held: The transaction was a statutory novation; the extinction of the liability of one debtor and its replacement by the liability of another. These two aspects of the transaction were not necessarily governed by the same law and that the question of whether the one debtor was discharged was governed by the proper law of the debt. The court rejected an analogy with the question of whether the benefit of a debt had been transferred to another person. ‘The contractual right to receive payment of a debt is an item of property, that is to say, a chose in action. It can be transferred by the creditor to a third party, but the validity of the transfer necessarily depends upon the lex situs, because the courts of the country where the debt is have jurisdiction over the title to it. Novation, on the other hand, does not involve the transfer of any property at all, for, as we have already pointed out, it comprises the annulment of one debt and the creation of another. Moreover, in novation a creditor may be vitally prejudiced, whereas it is immaterial to a debtor to whom he pays his debt provided that he gets a good discharge for it.’

Judges:

Jenkins LJ

Citations:

[1960] Ch 52

Jurisdiction:

England and Wales

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Appeal from – In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co HL 1960
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Cited – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Banking, Insolvency, Contract

Updated: 11 September 2022; Ref: scu.183832

Sharp and Others v Woolwich Building Society: HL 6 Feb 1997

The House was asked: what is meant by the word property in a floating charge and in section 53(7) of the 1986 Act which provides for the effect of the appointment of a receiver by the holder of such a charge in the following terms: ‘(7) On the appointment of a receiver under this section, the floating charge by virtue of which he was appointed attaches to the property then subject to the charge; and such attachment has effect as if the charge was a fixed security over the property to which it has attached.’
Held: Property which was held in trust was excluded from the receiver’s claim made under a floating security.

Judges:

Lord Browne-Wilkinson, Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Steyn, Lord Clyde

Citations:

Times 26-Mar-1997, [1997] UKHL 8

Links:

House of Lords, Bailii

Statutes:

Insolvency Act 1986 53(7), Companies (Floating Charges) (Scotland) Act 1961

Jurisdiction:

Scotland

Citing:

Cited – Carse v Coppen IHCS 8-Dec-1950
The court considered the inability to create a floating charge over a company’s assets in Scots law. It was conceded that a company registered in Scotland could not create a valid and effectual floating charge over its assets in Scotland, but it was . .
Cited – Gibson v Hunter Home Designs Limited SCS 7-Nov-1975
A disposition had been executed but not delivered.
Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 September 2022; Ref: scu.135030

Hill v Stokes plc: ChD 2010

The court approved the appointment of a company administrator with reprospective effect.

Judges:

McCahill QC

Citations:

[2010] EWHC 3726

Jurisdiction:

England and Wales

Citing:

Cited – In re G-Tech Construction Limited ChD 29-Sep-2005
In appointing the administrators, the wrong form had been used. The court was asked to use its powers to cure the mistake. The failure to file the correct form was overlooked, with the result that one of the prerequisites of an appointment taking . .

Cited by:

Cited – In re Care Matters Partnership Ltd ChD 7-Oct-2011
An application was made for the appointment of administrators with retrospective effect.
Held: ‘there are two separate questions. The first question is whether an administration order should be made at all. This requires both the satisfaction . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 September 2022; Ref: scu.445160

In re Anglo-Oriental Carpet Manufacturing Company: ChD 1903

Debentures creating a charge had been issued, but not registered within 21 days. On 1 November 1901, an order was made with the usual proviso (‘without prejudice to the rights of parties acquired prior to the time when such trust deed and debentures shall be actually registered’) extending time until 15 November 2001. The charge was registered on 15 November 2001. In the meantime, on 11 November, the company passed a resolution for voluntary winding up.
Held: The proviso protected the whole general body of creditors. At the commencement of a winding up: ‘On November 11, 1901, by force of the Act of Parliament, the undertaking and assets of the company passed under the control of the liquidator, whose duty it was to convert them into money, and out of the proceeds to pay the creditors existing at that date. The assets have been said to be impressed in the hands of the liquidator with a statutory trust in favour of the creditors. Upon the commencement of the winding-up an immediate duty was cast upon the liquidator to collect the assets and distribute them among the creditors then existing. At that moment the debenture-holders were unsecured creditors of the company, for they did not hold any security registered as required by the Act of 1900. It has been argued on behalf of the debenture-holders that when registration was made on November 15, 1901, there arose a security which was not in existence at the date when the liquidation commenced. But whether that was so or not, the order extending the time for registration was made ‘without prejudice to the rights of parties acquired prior to the time when such trust deed and debentures shall be actually registered.’ Whatever the exact limit of those words may be, they certainly in my judgment include the rights of creditors, acquired on the passing of the winding up resolution, to have the assets realized and distributed among them pari passu.’

Judges:

Buckley J

Citations:

[1903] 1 Ch 914

Jurisdiction:

England and Wales

Cited by:

Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 10 September 2022; Ref: scu.444537

Re Joplin Brewery Co Ltd: ChD 1902

The applicants, owners of a solvent family business, sought to register a charge over the company’s assets out of time.
Held: Buckley J saw the application under s 15 of the 1900 Act as a similar application to the application to register out of time under s 14 of the 1878 Act. Buckley J referred to the usual practice in applications under s 14 of attaching to any order extending time a proviso to protect the rights of third parties. He said: ‘These applications are made without serving the creditors, and the orders ought to be drawn so as to save the rights of persons who have become creditors of the company before registration is effected, just as in the case of bills of sale. I therefore direct that there be added to the order the words: ‘but that this order be without prejudice to the rights of parties acquired prior to the time when the debentures shall be actually registered’; and I intimate my opinion that these words ought to be added in every case, unless there is some good ground to the contrary – eg, in cases in which the order could not prejudice the rights of any creditors.’ and ‘these orders are made readily upon proper evidence of accident or inadvertence for the reasons that by the insertion of these words [the without prejudice qualification] the rights of absent parties are not affected.’

Judges:

Buckley J

Citations:

[1902] 1 Ch 79

Statutes:

Companies Act 1900 15, Bills of Sale Act 1878

Jurisdiction:

England and Wales

Cited by:

Cited – Victoria Housing Estates Ltd v Ashpurton Estates Ltd CA 1982
Although the Court has jurisdiction to extend the time for registration of a charge, its settled practice is not to do so when the company that granted the charge has already entered into liquidation. An application to extend the time for . .
Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Qualified – In re I C Johnson CA 1-May-1902
Kekewich J had permitted the late registration of a company debenture, but included the proviso introduced by Buckley J in In re Joplin Brewery. There were pari passu debentures, some issued before 1 January 1901, some after. The company was . .
Cited – In re Ehrmann Brothers Ltd CA 1906
Debentures had been issued after 1 January 1901 secured by a floating charge. It was was not registered in time. The judge had permitted registration, with a proviso as contained in In re I C Johnson, and registration was completed. A compulsory . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 10 September 2022; Ref: scu.444533

Bagnall QC v Official Receiver: CA 1 Dec 2003

Citations:

,[2004] 1 WLR 2832, [2003] EWCA Civ 1925, [2004] 2 All ER 294

Links:

Bailii

Statutes:

Insolvency Act 1986 279

Jurisdiction:

England and Wales

Citing:

Appeal from – Bagnall QC v the Official Receiver ChD 18-Jun-2003
The bankrupt was to receive his automatic discharge. The receiver had applied ex parte to suspend the automatic discharge. The bankrupt appealed.
Held: The court had power to make such an order. The court had seen strong prima facie evidence . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 September 2022; Ref: scu.193655

In re Wyvern Developments Ltd: ChD 1974

An official receiver ‘must do his best by his creditors and contributories. He is in a fiduciary capacity and cannot make moral gestures, nor can the court authorise him to do so.’

Judges:

Templeman J

Citations:

[1974] 1 WLR 1097

Jurisdiction:

England and Wales

Cited by:

Cited – Cowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 September 2022; Ref: scu.222824

Gertner and Another v CFL Finance Ltd: ChD 22 May 2020

Citations:

[2020] EWHC 1241 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – CFL Finance Limited v Gertner CA 23-Feb-2021
This appeal concerns a ‘Tomlin’ order made to dispose of proceedings which CFL Finance Limited had brought against G. It raises an important and difficult issue as to when, if ever, the Consumer Credit Act 1974 applies to agreements settling . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Consumer

Updated: 10 September 2022; Ref: scu.650961

Williams and Another v Broadoak Private Finance Ltd and Others: ChD 4 Apr 2018

Application for an order under paragraph 71 of Schedule B1 to the Insolvency Act 1986 (as amended) seeking the court’s permission to dispose of the freehold land known as Pier Hotel and situated at Hamilton Street, Birkenhead as if it were not subject to various security interests together with an order as to the application of the sale proceeds up to a limit of some pounds 4.48 million-odd.

Citations:

[2018] EWHC 1107 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Land

Updated: 10 September 2022; Ref: scu.618774

OBG Ltd And Others v United Kingdom: ECHR 29 Nov 2011

Admissibility

Citations:

[2011] ECHR 2087, 48407/07

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – OBG Ltd And Others v United Kingdom ECHR 13-Nov-2009
Statement of Facts . .
See Also – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
See Also – OBG Ltd and Another v Allan and others CA 21-Feb-2005
The Court reduced the amount of damages owed to the applicants to GBP 244,000 plus interest. . .
At HL – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency

Updated: 10 September 2022; Ref: scu.471977

Re a company (No 003102 of 1991), ex parte Nyckeln Finance Co Ltd: ChD 1991

Judges:

Harman J

Citations:

[1991] 1 BCLC 539

Jurisdiction:

England and Wales

Cited by:

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: 10 September 2022; Ref: scu.510892

OBG Ltd And Others v United Kingdom: ECHR 13 Nov 2009

Statement of Facts

Citations:

48407/07

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
See Also – OBG Ltd and Another v Allan and others CA 21-Feb-2005
The Court reduced the amount of damages owed to the applicants to GBP 244,000 plus interest. . .
Appeal from – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .

Cited by:

See Also – OBG Ltd And Others v United Kingdom ECHR 29-Nov-2011
Admissibility . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency

Updated: 09 September 2022; Ref: scu.383976

Bank of India v Morris and others: CA 22 Jun 2005

Citations:

[2005] EWCA Civ 693, [2005] BPIR 1067, [2005] 2 BCLC 328, [2005] BCC 739

Links:

Bailii

Statutes:

Insolvency Act 1986 213

Jurisdiction:

England and Wales

Cited by:

Main Judgment – Bank of India v Morris and others (Costs) CA 22-Jun-2005
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 09 September 2022; Ref: scu.226991

Goremsandu v Thomas and Others: ChD 22 Aug 2019

G sought an interim injunction restraining the trustees in bankruptcy from inquiring into her affairs and an order requiring them to remove restrictions that they have placed on properties that she owns, either in her own name or jointly with her son. That injunction is sought pending the outcome of an application that she has made to have her bankruptcy annulled.

Judges:

Fancourt J

Citations:

[2019] EWHC 2397 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 09 September 2022; Ref: scu.643881

Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513): CA 9 Dec 2005

The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The farmers’ appeal as to the farm transaction failed: ‘beyond argument that DEFRA was a ‘victim’ of the ‘transaction’ in the instant case. The fact that the sale by NatWest, looked at in isolation, caused no loss is not to the point. The point is that the ‘transaction’ was not the sale by NatWest, but the arrangement between KF and Miss Hawkins to use that sale as a necessary step in the process of transferring the intended benefit to Miss Hawkins. ‘ The transaction was to be set aside. As to the counterclaim in which damages were sought for trespass in the steps taken to dispose of carcasses of animal slaughtered for foot and mouth. There was no express statutory power to take the steps undertaken, in particular to bury the carcasses. The result was a permanent interference with the land: ‘authority to interfere permanently with private property rights is to be limited to the circumstances identified in section 34(4) and not to be extended to the more general power of disposal conferred by section 34(2). ‘ The European Groundwater Directive could not be used to justify such action, since there was no sufficient breach of the Directive. The Departments appeal on the counterclaims failed.

Judges:

Lord Justice Waller Lord Justice Jonathan Parker Mr Justice Moses

Citations:

[2005] EWCA Civ 1513, Times 22-Dec-2005

Links:

Bailii

Statutes:

Insolvency Act 1986 423, Animal Health Act 1981, Diseases of Animals (Seizure Order) 1993 (1993 No 1685, Foot-and-Mouth Disease Order 1983

Jurisdiction:

England and Wales

Citing:

Appeal from – Department for Environment, Food and Rural Affairs v Feakins and Another ChD 26-Nov-2004
The farmer complained that the department had, during the foot and mouth outbreak destroyed animals which did not belong to the owner of the land. The department said that the farmer had disposed of his land at an undervalue to defeat his creditors. . .
Cited – Re Brabon 2001
The debtor had contracted to sell his land to a third party developer, Silver. Between contract and completion, the debtor was made bankrupt. His wife, who already held legal charges over part of the land, took a transfer of a charge over the . .
Cited – National Westminster Bank plc v Jones and Others CA 24-Oct-2001
The respondent farmers charged the farm by way of an agricultural floating charge to the claimants. On coming into difficulties, they set up a limited company and granted a tenancy in its favour and transferred assets to it. The bank obtained . .
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 – Phillips (Liquidator of A J Bekhor and Co) and Another v Brewin Dolphin Bell Lawrie Limited and Another CA 17-Mar-1999
When considering whether a breach went to the root of a contract, an associated contract could be split off, even though it would not be split off for insolvency purposes when asking whether a transaction was at an undervalue. . .
Cited – Agricultural Mortgage Corporation Plc v Woodward and Another CA 30-May-1994
A tenancy granted by an insolvent farmer to his wife was set aside because of additional benefits which were granted. The tenancy was held to have been granted at an undervalue, even though the court was unable precisely to measure the value of the . .
Cited – Chohan v Saggar and Another CA 27-Dec-1993
The word ‘and’ in sections 423(2)(a) and 423(2)(b) is to be read conjunctively not disjunctively. Section 238(3) is to be interpreted as requiring restoration of the former position ‘as far as possible’ or ‘as far as practicable’, and that . .
Cited – Phillips (Liquidator of A J Bekhor and Co ) and Another v Brewin Dolphin Bell Lawrie HL 18-Jan-2001
The company sold its business to the respondent for one pound, but the respondent agreed to sublease computer equipment for an amount equivalent to the value of the company. The company defaulted, and the computer equipment was recovered. The . .
Cited – Regina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
Cited – Dixon and Another, Regina (on the application of ) v Secretary of State for the Environment, Food and Rural Affairs QBD 10-Apr-2002
The applicants were farmers. Their cattle were destroyed after contracting foot and mouth disease. Their land was used for the burning of the carcasses of their animals, and of animals from neighbouring farms. They were compensated inter alia for . .
Cited – Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners PC 18-Jan-1927
An Act removing the right of appeal to the Privy Council was held not to affect an appeal in litigation pending when the Act was passed and decided after its passing, on the ground that (Lord Warrington) ‘[t]o deprive a suitor in pending litigation . .
Cited – Minister of Housing and Local Government v Hartnell HL 1965
The law ordinarily entitles a person whose land is taken for a highway to compensation unless the statutory intention to resume without compensation is expressed in clear and unambiguous terms. Lord Wilberforce described a use treated as established . .
Cited – Allen v Gulf Oil Refining Ltd HL 29-Jan-1980
An express statutory authority to construct an oil refinery carried with it the authority to refine. It was impossible to construct and operate the refinery upon the site without creating a nuisance. Lord Wilberforce said: ‘It is now well settled . .
Cited – Franz Grad v Finanzamt Traunstein. (Measures Adopted By An Institution ) ECJ 6-Oct-1970
Europa It would be incompatible with the binding effect attributed to decisions by article 189 to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision. . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Burton v British Railways Board ECJ 16-Feb-1982
Europa The principle of equal treatment contained in article 5 of council directive 76/207 applies to the conditions of access to voluntary redundancy benefit paid by an employer to a worker wishing to leave his . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
Cited – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Criticised – Anchor Brewhouse Developments -v Berkley House (Docklands) Developments 1987
A crane which passes its boom over private land without permission creates an actionable nuisance. Damages could not be awarded so as to remove the plaintiff’s right to bring actions for trespass in the future if the trespass continued: ‘I find some . .
Cited – Harrow London Borough Council v Donohue CA 1995
The plaintiff complained at the defendant’s garage, half of which had been built on the plaintiff’s land. The judge had awarded damages in lieu of a mandatory injunction for its removal. The Council appealed.
Held: Where a landowner had been . .
See Also – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1658) CA 9-Dec-2005
. .
See Also – Regina on the Application of Feakins v Secretary of State for Environment, Food and Rural Affairs CA 4-Nov-2003
The applicant farmer had substantial volumes of potentially contaminated carcasses on his land. The respondent derogated from the European regulations which would have arranged for the disposal of the carcasses. The respondent challenged the . .

Cited by:

See Also – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1658) CA 9-Dec-2005
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Agriculture

Updated: 07 September 2022; Ref: scu.235918

Cartwright v Cartwright and Others: CA 3 Jul 2002

The petitioner former wife sought to make the husband bankrupt on the basis of unpaid maintenance debts. The maintenance was subject to variation by the original foreign court which had made the order.
Held: The order was one recognised under the Act. The fact that the foreign court could still order a variation was critical to the case. That debt could not be used to found a bankruptcy petition. Following Harrop, a foreign maintenance order which was variable could not be enforced in England at common law because it was not final and conclusive.

Judges:

Lord Justice Thorpe, Lord Justice Rix and Lady Justice Arden

Citations:

Times 31-Jul-2002, Gazette 12-Sep-2002, [2002] EWCA Civ 931, [2002] BPIR 895, [2002] 2 FLR 610, [2002] Fam Law 735, [2002] 2 FCR 413

Links:

Bailii

Statutes:

Maintenance Orders (Reciprocal Enforcement) Act 1972 21, Insolvency Rules 1986 (SI 1986 No 1925) 12.3(2)(a)

Jurisdiction:

England and Wales

Family, Insolvency

Updated: 07 September 2022; Ref: scu.174743

Sandhu (T/A Isher Fashions UK) v Jet Star Retail Ltd and Others: CA 19 Apr 2011

The claimant had supplied clothing to the defendant under a contract containing a retention of title clause. The defendant fell into financial difficulties and administration. The claimant now sought damages for conversion of its goods by the defendant and the administrators. The claimant appealed against an order which found that the defendants had had authority to sell the goods.
Held: The appeal failed. Moore-Bick LJ said: ‘Having regard to the commercial considerations mentioned earlier and to the language of clause 7, I am unable to accept that Jet Star’s authority to sell and dispose of goods subject to the retention of title clause was limited to disposals in what, in the context of a floating charge, could be described as the ordinary course of business. ‘

Judges:

Maurice Kay LJ, Smith LJ, Moore-Bick LJ

Citations:

[2011] EWCA Civ 459

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Driver v Broad 1893
An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property ‘in the ordinary course of its . .
Cited – In Re Bond Worth Ltd 1980
The parties disputed the property in goods which had been sold and then gone through successive manufacturing processes. The contract included a retention of title clause. Fibres were converted into manufactured carpets and thus lost their identity . .
Cited – Ashborder Bv and others v Green Gas Power Ltd and others ChD 29-Jun-2004
. .
Cited – Four Point Garage v Carter 1985
A simple retention of title clause was argued to have the effect of preserving title, despite the sale to an ultimate customer. The plaintiff had sold a car to a garage who in turn, it thought was leasing it to the defendant. The defendant was in . .
Lists of cited by and citing cases may be incomplete.

Contract, Torts – Other, Insolvency

Updated: 06 September 2022; Ref: scu.432839

Michael Gerson Ltd v Greatsunny Ltd: CA 9 Feb 2011

The landlord had agreed that its rights in respect of certain hired equipment installed by the tenant would be waived. On the tenant becoming insolvent, the landlord was to allow the owner 28 days to remove it. The parties disputed whether adequate notice had been given.
Held: The appeal was dismissed. The judge had found as a fact that the notice had been given, and nothing had been said to suspend the 28 day period.

Judges:

Arden LJ

Citations:

[2011] EWCA Civ 416

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re Friedlander ex parte Oastler CA 1884
Lindley LJ said of the section: ‘The first question is, what is the meaning of the debtors ‘giving notice’ that he has suspended, or is about to suspend, payment of his debts? I think it does not mean mere casual talk; it must be something formal . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 06 September 2022; Ref: scu.432811

Law Society of England and Wales and others v Shah and others: ChD 30 Nov 2007

Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not proceed to claim against the discharged bankrupts, but now sought recovery from their insurers.
Held: The Society could proceed. ‘while the claim remains disputable, it is not established that the insured has suffered a loss. Once the claim is settled or adjudicated on, it is clear that he has suffered a loss because he has come under an indisputable obligation to pay. Although it might be said that the insured was always under an obligation to pay from the moment the cause of action arose, once the claim is agreed or adjudicated on that obligation acquires a different quality. It is only where there is an established obligation to pay that an indemnifiable loss comes into being and that the indemnity under the contract arises. ‘
The effect of bankruptcy was to remove the action against the bankrupt for the debt, not to remove the debt itself. Once admission of the debt in the bankruptcy is adequate establishment of the Law Society’s claim to give rise to indemnifiable loss and a claim under the policy, then the release of the bankrupt from the obligation to pay (or more accurately the remedy of payment) is irrelevant.

Citations:

[2007] EWHC 2841 (Ch), Times 20-Dec-2007, [2007] All ER 488, [2009] Ch 223, [2008] Lloyd’s Rep IR 442, [2007] BPIR 1595, [2008] Bus LR 1742, [2008] 3 WLR 1401

Links:

Bailii

Statutes:

Third Parties (Rights against Insurers) Act 1930, Solicitors Act 1974, Insolvency Act 1986 281(1)

Jurisdiction:

England and Wales

Citing:

Cited – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL 14-Jun-1990
The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
Cited – West Wake Price and Co v Ching 1957
A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word . .
Cited – Post Office v Norwich Union Fire Insurance Society Ltd CA 1967
A contract of insurance provided an indemnity for ‘all sums which the insured shall become legally liable to pay as compensation in respect of loss of property’. The claim was by the Post Office against a contractor, Potters, for damaging one of . .
Cited – Bradley v Eagle Star Insurance Co Ltd HL 1989
Mrs Bradley was employed by Dart Mill several times from 1933 and 1970 and acquired byssinosis from inhaling cotton dust. The company was wound up in 1975 and dissolved in 1976. In 1984 she applied to the court for pre-action disclosure under . .
Mentioned – Re Harrington Motor Co Ltd, Ex parte Chaplin 1928
A person injured in a road accident had obtained judgment for damages against the company, but had been unable to enforce the judgment before the company went into liquidation. The company’s motor insurers paid the amount of the judgment to the . .
Cited – Cox v Bankside Members Agency Ltd and Others QBD 27-Jan-1995
Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents . .
Cited – Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd CA 29-Nov-2005
The claimant investors said that their financial adviser, the defendant insolvent company, had given them negligent advice. The action was brought as a preliminary to claiming against the defendant’s insurers under the 1930 Act, in the way made . .
Cited – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Cited – Heather and Son v Webb 1876
It was said that, after the discharge of the debtor from his bankruptcy, he had uttered a fresh promise to pay the debt. The court considered the proper construction of section 49 of the 1869 Act. Earlier statutes had made express provision making . .
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – Osborne v Cole 1999
A person who challenges a bankrupt’s trustee’s conduct under section 303 must show that the trustee is acting ‘in bad faith or so perversely that no trustee properly advised or properly instructing himself could so have acted, alternatively if he . .
Cited – Shepherd v Official Receiver CA 7-Jun-2007
renewed application for permission to appeal . .
Cited – Supperstone v Hurst (No 3) 2006
. .

Cited by:

Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Insolvency, Insurance

Updated: 06 September 2022; Ref: scu.261779