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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Insolvency - From: 2002 To: 2002

This page lists 60 cases, and was prepared on 08 August 2015.

 
Walker -v- WA Personnel Ltd [2002] BPIR 621
2002

His Honour Judge Havelock-Allan QC
Insolvency
The assets of group of companies were sold, and it then went into insolvent liquidation. The liquidator claimed that the sale was at an undervalue, and appliied to continue an interlocutory injunction. Held: There was a triable issue as to whether the sale was at an undervalue. The court considered what remedy might be granted if the liquidator succeeded, and whether it was seriously arguable that the court would set aside the sale and order the re-vesting of the assets. The purchaser had submitted that, given events which had occurred since the sale, the only remedy would be the shortfall between the agreed consideration and a fair price, and hence that no further interlocutory relied should be granted. Applying Chohan v. Saggar: "I accept that in broad terms the function of section 238 is …. to restore fair value to creditors. But to pass from that proposition to the proposition that in any case where subsequent events have intervened so as to alter or vary the assets transferred, the court will invariably order monetary compensation rather than the revesting of the assets, is to lose sight of the express wording of section 283(3). Section 283(3) says, in effect, that the purpose of any order under section 241 is 'for restoring the position to what it would have been if the company had not entered into the transaction. . . . The task of the court is to restore the status quo ante so far as is practicable. Assets which have been lost in the normal course of business since the date of the transaction can be ignored as being irretrievable…. Post-acquired rights can also be protected . . . So, provided that there are no intractable and insuperable difficulties, and none are suggested in this case, the court does not start with the presumption that, unless the assets remain wholly or largely intact, the court will order payment of compensation rather than vesting of the assets back in the administrator or liquidator. The court will look to see what orders the justice of the case requires in order to achieve restoration of the status quo ante. To my mind, the court would be slow to allow a transferee, who has entered into a transaction with an insolvent company when on notice that the transaction may be challenged by the liquidator as being at an undervalue, to retain his purchase simply by means of paying a further sum at a later date. I suggest that the court would look carefully at allowing a transferee in these circumstances to buy his way out of the problem if the court were to consider that he went into the transaction with his eyes open and took a calculated risk."
1 Cites

1 Citers


 
Strongmaster -v- Kaye [2002] EWHC 1408 (Ch); [2002] BPIR 1259
2002
ChD

Insolvency
An IVA which has expired by effluxion of time has come to an end, and cannot be revived.
1 Citers


 
Skjevesland -v- Geveran Trading Company Limited [2002] EWHC 2898 (Ch)
2002
ChD
Judge Howarth
Insolvency
The registrar had decided that the debtor's centre of main interests was situated in Switzerland. Held: Article 3 of Regulation (EC) 1346/2000 did not displace the bankruptcy jurisdiction which (as the registrar found) the High Court would otherwise have under section 265 of the Insolvency Act 1986.
1 Citers


 
Kellar -v- BBR Graphic Engineers (Yorks) Ltd [2002] BPIR 544; [2001] 1 All ER (D) 416
2002
ChD
Mr Roger Kaye QC
Insolvency
The court was asked whether the district judge had applied the right test on an application to set aside a statutory demand because the conclusions of the district judge referred to a real prospect of success, the test used in CPR 24.2, rather than the test of genuine triable issue. Held: The debate as to whether there is a distinction between the "genuine triable issue" test for cross-claims and "real prospect of succeeding on the claim" (i.e. on the cross-claims) involves a sterile and largely verbal question. Roger Kaye QC noted that the Insolvency Rules did not use the test of real prospect of success, and said: "It seems to me therefore to have been plainly intended that what is generally thought to have been a lower threshold than is now applicable to applications and Part 24 of the Civil Procedure Rule is to continue to apply to applications to set aside a statutory demand. This is no doubt because of the serious consequences that a statutory demand which is not set aside must have. It almost invariably and inevitably leads to the presentation of a bankruptcy petition and a bankruptcy order if the statutory demand is not set aside."
1 Citers


 
Anglo-Manx Group Ltd -v- Aitken [2002] BPIR 215
2002

John Jarvis QC
Insolvency, Limitation
The court discussed the case of Cottrell v Price: "There was considerable argument before me as to what is meant by the words "in the bankruptcy" as distinct from the words "outside the bankruptcy". Mr Adair submitted that the question can be formulated in this way. Is the claim being directed at property within the statutory trust, or does it relate to property outside of the trust: for example, after-acquired property, or property which cannot form part of the estate. It seems to me that this is the correct formulation and is consistent with the analysis of Buckley J in Cottrell –v- Price."
1 Cites

1 Citers


 
West Bromwich Building Society -v- Crammer [2002] EWCA Civ 1924
2002
CA
Chadwick LJ
Insolvency
Referring to Turner: "Those observations were plainly obiter in that case; but will be given, no doubt, the weight which they deserve. But they do not have the effect of depriving a court exercising its functions under s 271 of the duty to decide whether or not to make a bankruptcy order on the material which is then before it. Plainly, a court will ask itself whether arguments that are being run before have already been run and failed; and it may go on to ask itself why arguments which have been run before it have not previously been run. But it is for that court to decide whether the conditions which must be satisfied before a bankruptcy order can be made are satisfied."
1 Cites

1 Citers


 
Simms -v- Oakes [2002] EWCA Civ 8
15 Jan 2002
CA

Insolvency

[ Bailii ]
 
Woodward -v- Inland Revenue [2002] EWCA Civ 123
31 Jan 2002
CA

Insolvency, Taxes Management
The claimant alleged malitious prosecution on the part of the revenue.
Insolvency Act 1986 282
[ Bailii ]
 
Beat -v- Gopee and others [2002] EWCA Civ 219
8 Feb 2002
CA

Insolvency

[ Bailii ]
 
Television Trade Rentals Limited and Ttr Limited -v- High Court of Justice of the Isle of Man, Chancery Division [2002] EWHC 211 (Ch)
19 Feb 2002
ChD
The Honourable Mr Justice Lawrence Collins
Insolvency

[ Bailii ]
 
New Cap Reinsurance Corporation Ltd -v- HIH Casualty & General Insurance Ltd [2002] 2 BCLC 228; [2002] EWCA Civ 300
20 Feb 2002
CA

Insolvency, Insurance
Section 130(2) of the 1986 Act gives the court the freedom to do what is right and fair in all the circumstances.
Insolvency Act 1986 130(2)
[ Bailii ]

 
 Kahn and Another -v- Commissioners of Inland Revenue; In re Toshoku Finance plc; HL 20-Feb-2002 - Gazette, 21 March 2002; [2002] UKHL 6; Times, 25 February 2002; [2002] 1 WLR 671; [2003] 1 AC 1; [2002] 2 All ER 113; [2002] 2 Cr App R 9; [2002] HRLR 23; (2002) 166 JPN 431; (2002) 166 JP 333
 
Buchler and Another -v- Talbot and others Gazette, 25 April 2002; [2002] EWCA Civ 228
22 Feb 2002
CA

Insolvency, Company
The company's assets were subject to a floating charge. That had crystallised. The liquidators, after a voluntary winding up, sought to make the assets remaining after repayment of the sums secured, available to pay the costs of the winding up. The trustees of the debenture sought to appeal a finding that the assets were so available. Held: Having come within section 40, it would later fall within section 175(2)(b) upon insolvency. If they had not been paid by the receiver for his purposes they were available to pay the liquidators costs.
Insolvency Act 1986 40 175(2(b) 251
1 Citers

[ Bailii ]
 
Cullen and Another -v- Mp Cullen, Trustee In Bankruptcy of [2002] EWCA Civ 339
8 Mar 2002
CA

Insolvency

[ Bailii ]
 
Leicester -v- Lyedale Ltd Liquidators and Another [2002] EWCA Civ 471
12 Mar 2002
CA
Arden LJ
Litigation Practice, Insolvency
Application for leave to appeal.
[ Bailii ]
 
Regina -v- Daniel Times, 08 April 2002; [2002] EWCA Crim 959; [2003] 1 Cr App R 99
22 Mar 2002
CACD
Lord Justice Auld, Mr Justice Newman and Mr Justice Roderick Evans
Insolvency, Human Rights, Crime
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only. Held: The conviction predated the Human Rights Act, and was correct at the time. The Carass ruling applied also to the instant section, but since the issue related to interpretation of a statute, and new interpretations of statutes were not retrospective.
Insolvency Act 1986 352 - Human Rights Act 1998 3(1)
1 Cites

1 Citers

[ Bailii ]

 
 Regina -v- Kearns; CACD 22-Mar-2002 - Times, 04 April 2002; Gazette, 10 May 2002; [2002] EWCA Crim 748; [2002] 1 WLR 2815; [2003] 1 CAR 7; [2002] BPIR 1213; [2003] 1 Cr App R 7; [2002] Crim LR 653
 
Morris and others -v- Bank of America & National Trust Savings Association and others [2002] EWCA Civ 425
25 Mar 2002
CA

Insolvency

1 Cites

[ Bailii ]
 
Shierson and Another -v- Tomlinson and Another Times, 11 April 2002; Gazette, 10 May 2002
26 Mar 2002
CA
Lord Justice Peter Gibson, Lord Justice Ward and Lord Justice Dyson
Insolvency, Company
A company had entered into a voluntary arrangement with its creditors, but subsequently went into liquidation. There was then a dispute as to the destination of sums held under the arrangement. Held: Such arrangements created trusts. Whether that trust continued after formal insolvency was a matter of interpretation of the trust deed. Where money was expressly set aside to be paid to the creditors under the arrangement, that trust would normally continue beyond insolvency. If the deed made express provision for events on insolvency, that deed should be followed. The creditors under the voluntary arrangement could still prove in the bankruptcy for any balance of debt due to them after money secured under the deed.

 
Re Doran Constructions Pty Ltd (in liq) [2002] NSWSC 215; 168 FLR 116; (2002) 194 ALR 101; 20 ACLC 909
27 Mar 2002

Campbell J
Commonwealth, Insolvency, Legal Professions
Austlii (Supreme Court of New South Wales) CORPORATIONS - winding up - liquidator's examination - circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation - EVIDENCE - liquidator's examinations - whether evidence given at is governed by Evidence Act 1995 (NSW) - EVIDENCE - legal professional privilege - circumstances in which joint retainer of solicitor exists - EVIDENCE - procedure to adopt when deciding whether legal professional privilege does not exist - EVIDENCE - waiver of client legal privilege - disclosure of substance of advice - disclosure made knowingly and voluntarily - disclosure by agent or employee authorised to make it - disclosure made under compulsion of law
1 Citers

[ Austlii ]
 
Practice Statement (Administration order: Reports) Times, 25 April 2002
15 Apr 2002
ChD

Insolvency
The statement was issued as a gloss on the 1994 practice statement. A party wishing to restrict access to all or any part of an independent report prepared in support of an application for an administration order must be ready to support their application with proper reasons. Each application must be dealt with on its own facts, and different reasons may make applications valid. Nevertheless, the rules provided that such material should be public in the absence of good reason.
Insolvency Rules 1986 (SI 1986 No 1925) 2.2 7.31(5)
1 Cites


 
Peri -v- Engel [2002] EWHC 799 (Ch); [2002] BPIR 961
29 Apr 2002
ChD
Ferris J
Insolvency

1 Citers

[ Bailii ]
 
Peri -v- Engel Gazette, 07 June 2002
29 Apr 2002
ChD
Mr Justice Ferris
Insolvency, Costs
A third party agreed to pay the bankrupt's debts. He applied for the bankruptcy to be annulled, and for the trustee's costs to be assessed and fixed at a reasonable level under section 303. The trustee appealed the costs order saying that the bankrupt had not been prejudiced by his actions. Held: The appeal was dismissed since the trustees costs had to be fixed in order to clear the action, and whether or not he had acted to prejudice the bankrupt. However the only statutory footing was section 363, and the order was amended accordingly..
Insolvency Act 1986 303 363

 
Legal Services Commission -v- Leonard [2002] EWCA Civ 744; [2002] BPIR 994
1 May 2002
CA
Simon Brown LJ VP, Laws, Arden LLJ
Insolvency
The claimant appealed against an insolvency order made against him after being ordered to pay the costs of a legally aided party in a court action.
Civil Legal Aid (General) Regulations 1989
[ Bailii ]
 
Inland Revenue -v- Hashmi and Another [2002] EWCA Civ 981; [2002] 2 BCLC 489; [2002] BPIR 974
3 May 2002
CA
Arden LJ
Insolvency
The question for the court was whether when there was more than one purpose of a transaction the proscribed purpose under the section had to be dominant or not. Held: It was not necessary for the proscribed purpose to be the dominant purpose; it was sufficient if it was a real substantial purpose.
Arden LJ said: "Section 423 plays an important role in insolvency law. It can moreover apply even though the debtor is not in a formal insolvency . . Section [423] is a carefully calibrated section forming part of a carefully calibrated group of sections." The court should construe the provision as permitting the court to set aside a transaction entered into for a number of purposes provided that a real substantial purpose was to put assets beyond the reach of the Revenue. It would have confounded the purpose of the provision to permit the defendant to avoid an order merely because other purposes could be demonstrated.
Insolvency Act 1986 423
1 Cites

1 Citers

[ Bailii ]
 
Winsor -v- Bloom and Others; In re Railtrack plc (in railway administration) [2002] EWHC 1027 (Ch)
21 May 2002
ChD

Transport, Insolvency

Railways Act 1993 59
[ Bailii ]
 
Millennium Commission -v- Multicultural Media Centre for the Millennium [2002] EWCA Civ 874
13 Jun 2002
CA

Insolvency

1 Cites

1 Citers

[ Bailii ]
 
Sladen -v- Lee [2002] EWCA Civ 969
17 Jun 2002
CA

Land, Insolvency
Second application for permission to appeal.
Insolvency Act 1986 335A
[ Bailii ]
 
Clarke -v- Coutts & Co Gazette, 27 June 2002; [2002] EWCA Civ 943
17 Jun 2002
CA
Lords Justice Simon Brown and Peter Gibson and Sir Murray Stuart-Smith
Insolvency, Banking, Civil Procedure Rules
The respondent bank had obtained a charging order nisi against the applicant's property. The applicant then obtained an order under s252 of the act requiring any further action against his estate to be stayed. The bank nevertheless obtained an order absolute. The claimant was not represented at that hearing. Several years later he sought to set aside the order. At first instance the judge said that the court retained a discretion, and ex debito justiciae, the order should stand. The claimant appealed. Held: The statute did not allow for any such discretion. Rule 3.2 allowed discretion in cases of procedural error, but this was statutory. The order absolute remained valid until set aside, but the right to have it set aside was equally absolute. The nisi order was a temporary order made complete on order absolute. It was therefore a continuing action within the section. The order absolute was therefore void, and since the order nisi was conditional upon it, that fell away also.
Insolvency Act 1986 252(2) - Civil Procedure Rules 3.2
1 Cites

1 Citers

[ Bailii ]
 
Cartwright -v- Cartwright and Others Times, 31 July 2002; Gazette, 12 September 2002; [2002] EWCA Civ 931; [2002] EWCA Civ 931
3 Jul 2002
CA
Lord Justice Thorpe, Lord Justice Rix and Lady Justice Arden
Family, Insolvency
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.
Maintenance Orders (Reciprocal Enforcement) Act 1972 21 - Insolvency Rules 1986 (SI 1986 No 1925) 12.3(2)(a)
[ Bailii ]
 
Woodland-Ferrari -v- UCL Group Retirement Benefits Scheme Times, 17 July 2002
5 Jul 2002
ChD
Mr Justice Ferris
Insolvency, Estoppel
The bankrupt had received his discharge from the bankruptcy and the debts associated. After the discharge he received a statutory demand from the trustees of a pension fund claiming sums from him alleging his dishonest breach of trust. He replied by saying that he had been discharged. Held: To constitute a 'fraudulent breach of trust' under the Act, the behaviour had to have been deliberate and dishonest. An alternative view would have been against the spirit behind the 1986 legislation. The Financial Services Ombudsman had made a finding that he had been in 'wilful default' but that was not so equivalent a finding as to allow an estoppel as to whether he had acted fraudulently. The debt was in dispute, and the statutory demand was set aside.
Insolvency Act 1986 281(1) 281(3)

 
Winsor -v- Bloom and Others; In re Railtrack plc (in railway administration) Times, 15 July 2002; Gazette, 12 September 2002; [2002] EWCA Civ 955
10 Jul 2002
CA
Lord Woolf, Lord Chief Justice, Lord Justice Waller and Lord Justice Robert Walker
Utilities, Administrative, Insolvency
The claimant, the Rail regulator appealed a decision that he had to apply to court for directions under the 1986 Act before allowing other rail operators access to the track after the company had gone into railway administration. Held: Section 17 of the 1993 Act was sufficient to allow the regulator to make such an order without first approaching the court. In exercising the power the regulator had to have regard to the interests of others which would not be reflected in insolvency proceedings, and the importance of that role overrode if necessary the interests in the company.
Railways Act 1993 17 - Insolvency Act 1986 11(3)(d)
[ Bailii ]
 
Regina -v- Muhamad Times, 16 August 2002; [2002] EWCA Crim 1856; [2003] QB 1031; [2003] 2 WLR 1050
19 Jul 2002
CACD
Lord Justice Dyson, Mr Justice Silber and Judge Goddard, QC
Insolvency, Crime, Human Rights
The appellant had been convicted of an offence under the section in that as a bankrupt, he "in the two years before the petition, materially contributed to, or increased the extent of, his insolvency by gambling or by rash and hazardous speculations". The actus reus – the bankruptcy petition and the bankruptcy to which it gives rise – does not exist and may never come to exist at the time of the gambling or speculations. Held: Under Article 7 of the ECHR, retrospectivity under section 362(1)(a) did not offend the principle of legal certainty or Article 7 (in relation to which it was held to be proportionate). There is nothing objectionable in principle with strict liability offences under Article 7 which required a different conclusion, than that the offence under section 362(1)(a) is one of strict liability.
Dyson LJ said: The offences where no mental element is specified, for the most part, attract considerably lower maximum sentences than those where a mental element is specified."
Insolvency Act 1986 362(1)(a) - European Convention on Human Rights 10
1 Cites

[ Bailii ]
 
Stocznia Gdanska Sa -v- Latvian Shipping Company and others [2002] EWCA Civ 1089
23 Jul 2002
CA

Insolvency, Torts - Other
Application for leave to appeal to the House of Lords refused.
1 Cites

1 Citers

[ Bailii ]
 
AMP Enterprises Ltd -v- Hoffman and Another Times, 13 August 2002; Gazette, 19 September 2002; [2002] EWHC 1989 (Ch)
25 Jul 2002
ChD
Mr Justice Neuberger
Insolvency
A creditor sought an order to replace the company liquidator. Held: Such orders were discretionary, but courts should not grant them too readily. It was for the applicant to show good reason for the order. The circumstances would vary widely, and the court should not try to delimit the kind of situations where an application would succeed. Nevertheless a liquidator might be removed where he had failed to act vigorously, or had a perceived bias in favour of one section of creditors. Where a liquidator was subject to proper criticism, a court might be ready to order his removal. The court must also bear in mind the consequences in cost and delay of removal. This liquidator should not be removed. "In an application such as this, the court may have to carry out a difficult balancing exercise. On the one hand the court expects any liquidator, whether in a compulsory winding up or a voluntary winding up, to be efficient and vigorous and unbiased in his conduct of the liquidation, and it should have no hesitation in removing a liquidator if satisfied that he has failed to live up to those standards at least unless it can be reasonably confident that he will live up to those requirements in the future. . . On the other hand, if a liquidator has been generally effective and honest, the court must think carefully before deciding to remove him and replace him. It should not be seen to be easy to remove a liquidator merely because it can be shown that in one, or possibly more than one, respect his conduct has fallen short of ideal. Otherwise, it would encourage applications under s108 (2) by creditors who have not had their preferred liquidator appointed, or who are for some other reason disgruntled. Once a liquidation has been conducted for a time, no doubt there can almost always be criticism of the conduct, in the sense that one can identify things that could have been done better, or things that could have been done earlier. It is all too easy for an insolvency practitioner, who has not been involved in a particular liquidation, to say, with the benefit of the wisdom of hindsight, how he could have done better. It would plainly be undesirable to encourage an application to remove a liquidator on such grounds. It would mean that any liquidator who was appointed, in circumstances where there was support for another possible liquidator, would spend much of his time looking over his shoulder, and there would be a risk of the court being flooded with applications of this sort. Further, the court has to bear in mind that in almost any case where it orders a liquidator to stand down, and replaces him with another liquidator, there will be undesirable consequences in terms of costs and in terms of delay. "
Insolvency Act 1986 108(2)
1 Cites

1 Citers


 
European Micro Plc -v- Van Der Voort [2002] EWCA Civ 1242
31 Jul 2002
CA
Aldous, Laws, Jonathan Parker LJJ
Insolvency
Appeal against injunction preventing winding up petitition based on statutory demand.
[ Bailii ]

 
 Michael Anthony Prosser -v- Castle Sanderson Solicitors (a Firm), Geoffrey Martin & Co (A Firm); CA 31-Jul-2002 - [2002] EWCA Civ 1140
 
Flightline Ltd -v- Edwards and Another Times, 23 August 2002; Gazette, 10 October 2002; [2002] 1 WLR 2535
2 Aug 2002
ChD
Mr Justice Neuberger
Insolvency
Money had been paid into an account in the joint names of the parties' solicitors in order to purchase the release of the applicants from an asset freezing order. The respondent company was in liquidation. It was argued that the payment of funds into the joint account made the claimant a secured creditor. The liquidators argued that the defendant was not a secured creditor since no proprietory interest in the fund has been created. Held: The payment of funds into court did create a security. The payment into a bank account in the joint names of the solicitors was intended to create the same result. It could not be dealt with without an order of the court, and it was intended to secure a particular result in the litigation, and the money was paid into an escrow account, the effect of which was that it would inevitable be paid out on the happening of certain events.
Insolvency Act 1986 130
1 Cites

1 Citers


 
Mountney -v- Treharne Times, 09 September 2002; Gazette, 10 October 2002; [2002] EWCA Civ 1174; [2003] Ch 135
8 Aug 2002
CA
Lord Justice Aldous, Lord Justice Laws and Lord Justice Jonathan Parker
Insolvency, Family, Equity
In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been transferred. Held: Upon the order taking effect (upon the decree absolute), the wife acquired an equitable interest in the property, and the trustee in bankruptcy took subject to that interest. The ratio in Maclurcan was directly applicable and binding, though the correctness of that decision was doubted. It is the order of the court exercising the matrimonial jurisdiction which effects the transfer of the beneficial interest not the subsequent disposition made by or on behalf of the individual who later becomes bankrupt.
Matrimonial Causes Act 1973 24(1)(a) - Insolvency Act 1986 283(5)
1 Cites

1 Citers

[ Bailii ]
 
Thakrar -v- Ciro Citterio Menswear Plc In Administration [2002] EWHC 1975 (Ch)
1 Oct 2002
ChD
The Vice-Chancellor
Insolvency, Company
Disputes arose between shareholders in a family company. Proceedings which expressly excluded the company were settled, but the company became insolvent. A later settlement was refused approval by the judge without the creditors consent. The claimant now sought a declaration that the earlier compromise bound the company. The company argued that the agreement was conditional upon its approval, and was therefore not binding. Held: Proceedings might be settled in many ways. A Tomlin order gives effect to a pre-existing agreement. It was not conditional. It was argued that the agreement was unenforceable as illegal, breaching prohibitions in the 1985 Act. Any difficulties were capable of being cured, and the agreement was not unlawful.
Insolvency Act 1986 11(3)(d) - Companies Act 1985 143(1) 151(1) 459
1 Cites

[ Bailii ]
 
Popely -v- Popely [2002] EWCA Civ 1448
3 Oct 2002
CA

Insolvency

1 Citers

[ Bailii ]
 
Warley Continental Services Ltd (in liquidation) -v- Johal Times, 28 October 2002
7 Oct 2002
ChD
Norris QC
Insolvency
The liquidator sought to revoke or suspend the voluntary arrangement on the grounds of a material irregularity, but the application was lodged well outside the statutory 28 day limit, and he first sought leave to apply out of time. Held: The court had a discretion to extend the limit, and could take into account a wide range of factors, but here the delay had been long with regard to the tight timetable imposed by the Act, even though other considerations suggested a review, and the application was rejected.
Insolvency Act 1986 262(3) 376
1 Cites


 
Cullen -v- Whinhurst Investments Ltd and Another [2002] EWCA Civ 1458
7 Oct 2002
CA

Insolvency

[ Bailii ]
 
Pattison -v- Clarksons & Steele [2002] EWCA Civ 1551
16 Oct 2002
CA
Mantell J
Insolvency, Litigation Practice
The claimant had instructed the defendant firm of solicitors to claim in copyright. They failed to notify the defendants in that action that he was legally aided. When the action was dismissed, the solicitors were ordered to pay costs. Subsequently the claimant had begun several actions against the defendants. Each had been lost, with orders for costs against him, totalling £28,000, and bankruptcy proceedings commenced. A further action was stayed pending payment. Held: The bankruptcy order made him incompetent to pursue these proceedings. There were no grounds to permit an appeal to go ahead.
[ Bailii ]
 
Wei Hai Restaurant Ltd -v- HM Customs & Excise [2002] EWCA Civ 1647
17 Oct 2002
CA

Insolvency

[ Bailii ]
 
Barnes -v- Peter Godfrey-Evans [2002] EWCA Civ 1564
22 Oct 2002
CA

Insolvency
Application for leave to appeal out of time refused.
[ Bailii ]
 
Kent -v- Dethlefson [2002] EWCA Civ 1602
24 Oct 2002
CA

Insolvency

[ Bailii ]
 
Guardi Shoes Ltd -v- Datum Contracts Unreported, 28 October 2002
28 Oct 2002


Insolvency

1 Citers


 
In re Menastar Finance Ltd (in Liquidation); Menastar Ltd -v- Simon Times, 11 November 2002
4 Nov 2002
ChD
Etherton J
Insolvency
In the course of a winding up, the applicant creditor sought to prevent the liquidator admitting a proof of debt which he had previously refused. Held: It was established law that the court could go behind the liquidator's judgement to examine the circumstances behind the admission to proof of debts. However, here, the applicant itself was at risk of an action for misfeasance. The amount of its proof was not substantial, and it had itself been in part the cause of the debt being refused. The sole purpose of the action was not to prevent wrongful dilution of the assets, but rather to retain control of the liquidation, and so to prevent the action. Application refused.

 
Foden -v- Humphry & Co (A Firm) and Another [2002] EWCA Civ 1714
8 Nov 2002
CA

Insolvency

[ Bailii ]
 
Lloyds Bank Plc and others -v- Cassidy [2002] EWCA Civ 1606
8 Nov 2002
CA
Mance LJ
Insolvency, Banking

1 Cites

1 Citers

[ Bailii ]
 
Shierson and Another -v- Rastogi and Another Times, 20 November 2002; Gazette, 16 January 2003; [2002] EWCA Civ 1624
9 Nov 2002
CA
Peter Gibson, Mance, Hale LJJ
Company, Insolvency
Company directors in an insolvent liquidation faced proceedings by the liquidators. They resisted providing additional evidence under examination by the liquidators. Held: The sections under the 1986 Act should be read together. Where a director faced serious charges, requiring him to provide evidence against himself would be oppressive. The existence of such proceedings must be a major factor in deciding whether to order examination, and so also was the fact that they were directors. Even so, it was a balancing exercise for each case.
Insolvency Act 1986 235 236
[ Bailii ]
 
Household Mortgage Corporation plc -v- Whitehead and Another Times, 29 November 2002; Gazette, 30 January 2003; [2002] EWCA Civ 1657; [2003] 1 WLR 1173; [2003] 2 FCR 369; [2003] 1 All ER 319; [2003] 6 BPIR 1482; [2003] 1 All ER (Comm) 263
14 Nov 2002
CA
Chadwick, Sedley, Scott-Baker LJJ
Insolvency, Banking
The mortgage lender had proved in the voluntary arrangement as an unsecured creditor. It had valued the security as less than the debt, and accepted a dividend on the portion remaining unsecured. It now sought to enforce the security. It was argued that it had compromised its entire claim. Held: The lender had compromised its claim for that part of the debt which was unsecured, but that did not affect its ability to claim the rest under the security. The rules made provision for this, for bankruptcy but did not apply directly to a voluntary arrangement. However the court should be slow to create different conditions for arrangements. Absent an express term in an IVA, the court should be slow to imply a term that, by participating in and accepting payment of a dividend, a secured creditor had agreed to treat part of his debt as unsecured.
Insolvency Rules 1986 (1986 No 1925) Part 6 Chapter 9
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Re Thoars (Dec'd); Reid -v- Ramlort Ltd Times, 23 November 2002; Gazette, 30 January 2003; [2002] EWHC 2416 (Ch)
15 Nov 2002
ChD
Andrew Morritt VC
Insolvency
The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued. Held: The property was to be valued at the time it was assigned. Following Brewin Dolphin, the valuer was not to take into account events which occurred after the assignment was completed, save to the extent that they were relevant at the date of the transaction. The valuation was for the judge.
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Highberry Limited, Highberry Llc -v- Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) [2002] EWHC 2503 (Ch); [2003] 1 BCLC 290
25 Nov 2002
ChD
Lawrence Collins J
Insolvency, Litigation Practice
Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of Justice (although not the subject of decision) in relation to insolvency proceedings brought directly by bondholders.
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Commissioners of Customs & Excise -v- Anglo German Breweries Limited [2002] EWHC 2458 (Ch); [2003] BTC 5021
29 Nov 2002
ChD
Mr Justice Lawrence Collins
Customs and Excise, Insolvency
The respondents appealed against imposition of assessments for the diversion of alcohol products from bonded warehouses without payment of duties. Pretence had been made of deliveries abroad, but the goods were later diverted. The company was insolvent even without the impositions, but sought to delay the winding up to resolve its appeal against the impositions. Held: Where there was a substantial and properly disputed debt, winding up would be delayed. However this is not a disputed debt, because it was deemed to be due once the assessment was issued. Did the appeal disturb that position? This is an excise duty case not a customs case, and the Customs Code did not apply. The debt was not suspended by the appeal. On the facts it was impossible to conclude that any fraud had taken place other than at the offices of the applicants.
Finance Act 1994 12(3) - Value Added Tax Act 1994 73(7A)
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John Patrick McGowan -v- Michael Chadwick [2002] EWCA Civ 1758
5 Dec 2002
CA
Mr Justice Pumfrey Lord Justice Jonathan Parker Lord Justice Schiemann <
Insolvency

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Colin Gwyer and Associates Ltd and Another -v- London Wharf (Limehouse) Ltd and Others Times, 24 January 2003
13 Dec 2002
ChD
Kosmin QC
Company, Insolvency
The company passed a resolution. The claimant asserted that it was void, having been passed without proper consideration by the directors. Held: A company director had a duty to establish what were the proper interests of a company before passing a resolution. That duty was both in his fiduciary duty to the company as director, and also as a paramount duty to creditors. In the absence of such consideration, a resolution could be declared void (as here). If such consideration was given, a court would be slow to substitute its own judgement.

 
Colt Telecom Group Plc, In the Matter of the Insolvency Act 1986 [2002] EWHC 2815 (Ch); [2007] Lloyd's Rep PN 23; [2003] BPIR 324
20 Dec 2002
ChD
The Hon Mr Justice Jacob
Insolvency

Insolvency Act 1986
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TXU UK Limited (In Administration) -v- In the Matter of the Insolvency Act 1986 [2002] EWHC 2784 (Ch)
20 Dec 2002
ChD
The Honourable Mr Justice Peter Smith
Insolvency

Insolvency Act 1986
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