Kornhaas v Thomas Dithmar: ECJ 10 Dec 2015

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

Citations:

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

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 23 May 2022; Ref: scu.557015

in re Pergamon Press Ltd: CA 1971

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

Judges:

Lord Denning MR

Citations:

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

Statutes:

Companies Act 1948

Jurisdiction:

England and Wales

Cited by:

CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedFinancial Conduct Authority v Macris SC 22-Mar-2017
The claimant had complained that the appellant Authority had made public a penalty imposed on a former employer but implicating him without he being first given an opportunity to make representations. . .
CitedLewin, Regina (on The Application of) v The Financial Reporting Council Ltd and Others Admn 19-Mar-2018
. .
CitedUK Innovative TI Ltd and Another v The Financial Conduct Authority UTTC 25-Apr-2018
FINANCIAL SERVICES – procedure – applicants contending they have third party rights in relation to a Supervisory Notice – whether Tribunal has jurisdiction in relation to the subject matter of the references-no-references struck out – Rule 8 (2) (a) . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 20 May 2022; Ref: scu.622608

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

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

Judges:

Megarry J

Citations:

[1970] Ch. 576

Jurisdiction:

England and Wales

Citing:

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

Insolvency

Updated: 20 May 2022; Ref: scu.622387

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

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

Judges:

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

Citations:

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

Links:

Bailii

Statutes:

Insolvency Act 1986 112

Jurisdiction:

England and Wales

Cited by:

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

Constitutional, Insolvency

Updated: 20 May 2022; Ref: scu.622344

In Re Rolls Razor Ltd: ChD 1968

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

Judges:

Buckley J

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 20 May 2022; Ref: scu.622386

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

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

Judges:

Dillon LJ

Citations:

[1990] BCC 708

Jurisdiction:

England and Wales

Citing:

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

Insolvency

Updated: 20 May 2022; Ref: scu.622384

Re Esal (Commodities) Ltd: CA 30 May 1988

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

Citations:

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

Statutes:

Companies Act 1985 561

Jurisdiction:

England and Wales

Cited by:

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

Company, Insolvency

Updated: 20 May 2022; Ref: scu.622389

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

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

Judges:

Millett J

Citations:

[1990] BCC 125

Statutes:

Companies Act 1984 268

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Insolvency

Updated: 20 May 2022; Ref: scu.622385

In Re Esal (Commodities) Ltd: CA 1989

Citations:

[1989] BCLC 59

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Insolvency

Updated: 20 May 2022; Ref: scu.622388

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

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

Judges:

Thomas J

Citations:

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

Links:

Bailii

Statutes:

Civil Procedure Rules 44.3(2)

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Costs, Insolvency

Updated: 20 May 2022; Ref: scu.89570

Stein v Blake: CA 13 May 1993

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

Judges:

Balcombe LJ

Citations:

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

Statutes:

Insolvency Act 1986 323f

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 20 May 2022; Ref: scu.89539

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

Judges:

Lord Carloway

Citations:

[2003] ScotCS 304

Links:

Bailii

Statutes:

Insolvency Act 1986 242

Jurisdiction:

Scotland

Cited by:

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

Insolvency

Updated: 19 May 2022; Ref: scu.190761

Regina v Kansal: CACD 24 Jun 1992

K had been convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was required to deliver up to the Official Receiver or his trustee, contrary to section 354(2); and (b) he failed without reasonable excuse to account for the loss of a substantial part of his property or to give a satisfactory explanation of the manner of the loss, contrary to section 354(3). Large sums were involved-he obtained from the Halifax Building Society pounds 150,000 and pounds 116,250 on a false representation as to his income and that he was not bankrupt and that he did not have any judgment or proceedings for debt outstanding. Prior to these advances he was adjudged bankrupt. His wife later collected from his solicitor pounds 104,000 in cash, part of the monies advanced by the Building Society, and took it in a bin liner to India.. 2. At his trial in 1992 the prosecution, using section 433 of the 1986 Act brought evidence of answers given by him under compulsion in his bankruptcy proceedings and the trial judge ruled that these answers were not rendered inadmissible by virtue of section 31 of the Theft Act 1968 but were admissible under section 433.
Held: His appeal failed. There was no bar on a prosecution based upon evidence in the form of admissions which had been provided involuntarily under the Insolvency Act in public hearings in later Theft Act cases. The written record could be used in any later proceedings.
The Insolvency Act 1986 and its Rules not only permitted the examination of the bankrupt to take place but rendered any statement made in the course of that examination admissible in any trial. In those circumstances, with specific legislation directed to this issue, the protection provided under section 31 of the Theft Act 1968 was inapplicable:
‘The privilege from self-incrimination is abrogated in bankruptcy proceedings not by the opening words of section 31 of the Theft Act 1968, but by rule 6.175 of the Insolvency Rules 1986 made pursuant to section 412 of the act of 1986:
‘(1) The bankrupt shall at the hearing be examined on oath; and he shall answer all questions as the court may put, or allow to be put, to him . . (5) The written record may, in any proceedings (whether under the Act or otherwise) be used as evidence against the bankrupt of any statement made by him in the course of his public examination.’
Thereafter section 433 of the Act of 1986 renders the evidence admissible.’

Citations:

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

Statutes:

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

Jurisdiction:

England and Wales

Cited by:

CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
See AlsoRegina v Kansal, on a Reference From the Criminal Cases Review Commission (2) CACD 24-May-2001
Once a case had been referred to the Court of Appeal by the Criminal Cases Review Commission, the court had to make a declaration, even if the case was very old. The effect of the 1998 Act on statute law was not retrospective, but where it affected . .
See AlsoRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Evidence, Insolvency, Crime

Updated: 19 May 2022; Ref: scu.87029

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

Guidance from Vice Chancellor on cost of obtaining independent reports.

Citations:

Times 25-Jan-1994

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 19 May 2022; Ref: scu.84975

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

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

Judges:

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

Citations:

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

Links:

House of Lords, Bailii

Statutes:

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

Citing:

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

Cited by:

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

Insolvency, Benefits, Scotland

Updated: 19 May 2022; Ref: scu.84121

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

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

Judges:

Chadwick LJ

Citations:

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

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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

Cited by:

CitedMalcolm v Mackenzie, Allied Dunbar Plc CA 21-Dec-2004
The bankrupt complained that having been made bankrupt, his self-employed pension was subject to attachment by his trustee, but had he been a member of a company scheme the asset would not, and that this was discriminatory.
Held: The . .
CitedHorton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Financial Services

Updated: 19 May 2022; Ref: scu.82838

Foxley v United Kingdom: ECHR 20 Jun 2000

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

Citations:

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

Links:

Worldlii, Bailii

Statutes:

Insolvency Act 1986 371, European Convention on Human Rights

Cited by:

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

Human Rights, Insolvency, Legal Professions

Updated: 19 May 2022; Ref: scu.80653

Dora v Simper and Others: ChD 26 May 1999

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

Citations:

Times 26-May-1999

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Insolvency

Updated: 19 May 2022; Ref: scu.80100

Cork v Rolph: ChD 21 Dec 2000

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

Citations:

Times 21-Dec-2000

Insolvency

Updated: 19 May 2022; Ref: scu.79509

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

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

Judges:

Phillips J

Citations:

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

Cited by:

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

Litigation Practice, Insolvency, Insurance

Updated: 19 May 2022; Ref: scu.79586

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

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

Citations:

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

Insolvency

Updated: 19 May 2022; Ref: scu.78923

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

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

Citations:

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

Statutes:

Insolvency Act 1986 11(3)(d)

Insolvency, Litigation Practice, Intellectual Property

Updated: 18 May 2022; Ref: scu.78409

In Re Conley: CA 1938

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

Citations:

[1938] 2 All ER 127

Statutes:

Bankruptcy Act 1914 44

Jurisdiction:

England and Wales

Cited by:

CitedTam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd PC 1996
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 May 2022; Ref: scu.617852

In re Wanser Ltd: 1891

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

Judges:

North J

Citations:

[1891] 1 Ch 305

Cited by:

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

Insolvency, Scotland, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.567273

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

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

Judges:

Harman J

Citations:

[1992] BCLC 137

Cited by:

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

Insolvency

Updated: 18 May 2022; Ref: scu.567379

Borneman v Wilson: CA 1884

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

Judges:

Bowen and Fry LJJ

Citations:

(1884) 28 Ch D 53

Cited by:

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

Insolvency, Costs

Updated: 18 May 2022; Ref: scu.566481

School Board for London v Wall Brothers: CA 1891

Judges:

Lord Esher MR and Lopes and Kay LJJ

Citations:

(1891) 8 Morr 202

Citing:

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

Cited by:

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

Costs, Insolvency

Updated: 18 May 2022; Ref: scu.566482

Re Howard Holdings Inc: ChD 1998

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

Judges:

Chadwick J

Citations:

[1998] BCC 549

Statutes:

Insolvency Act 1986 214

Cited by:

CitedBilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 May 2022; Ref: scu.565824

Carman v The Kronos Group SA: 2006

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

Citations:

[2006] BCC 451

Statutes:

Insolvency Act 1996 213

Jurisdiction:

England and Wales

Cited by:

CitedBilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Jurisdiction

Updated: 18 May 2022; Ref: scu.565825

In re Bluck, Ex parte Bluck: 1887

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

Citations:

(1887) 57 LT 419

Cited by:

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

Insolvency, Costs

Updated: 18 May 2022; Ref: scu.537712

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

Citations:

[1911] 2 KB 652

Cited by:

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

Insolvency, Costs

Updated: 18 May 2022; Ref: scu.537713

In re Kavanagh: KBD 1949

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

Citations:

[1949] 2 All ER 264

Cited by:

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

Insolvency

Updated: 18 May 2022; Ref: scu.525973

Cornhill Insurance plc v Improvement Services Ltd: 1986

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

Judges:

Harman J

Citations:

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

Citing:

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

Cited by:

CitedBNY Corporate Trustee Services Ltd and Others v Neuberger SC 9-May-2013
Potential Insolvency effect under guarantee
The various parties had entered into complex and substantial financial arrangements incorporating guarantees. The guarantees were conditional upon the guaranteed party being solvent. The parties disputed whether a party which would otherwise be . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 18 May 2022; Ref: scu.535113

Ex parte Sidebotham; In re Sidebotham: CA 1880

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

Judges:

James LJ

Citations:

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

Statutes:

Bankruptcy Act 1869 71

Cited by:

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

Insolvency

Updated: 18 May 2022; Ref: scu.470545

Smith v Mills: 1584

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

Citations:

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

Links:

Commonlii

Insolvency

Updated: 18 May 2022; Ref: scu.429297

Inland Revenue Commissioners v Goldblatt: 1972

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

Citations:

[1972] Ch 498

Jurisdiction:

England and Wales

Cited by:

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

Taxes Management, Insolvency, Torts – Other

Updated: 18 May 2022; Ref: scu.268780

Ashe v Mumford and Others: ChD 7 Mar 2000

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

Citations:

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

Statutes:

Insolvency Rules 1986 (1986 No 1925) 7.3

Cited by:

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

Litigation Practice, Insolvency

Updated: 17 May 2022; Ref: scu.77892

Anderson v Hyde and Others: CANI 2 May 1996

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

Citations:

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

Cited by:

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

Insolvency, Northern Ireland, Costs

Updated: 17 May 2022; Ref: scu.77787

AIB Finance Ltd v Debtors: ChD 10 Apr 1997

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

Judges:

Carnwath J

Citations:

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

Statutes:

Rules of the Supreme Court O59R10(2)

Cited by:

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

Insolvency, Banking

Updated: 17 May 2022; Ref: scu.77680

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

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

Judges:

Mr Roger Kaye QC

Citations:

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

Cited by:

CitedBryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
CitedCollier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 17 May 2022; Ref: scu.258442

Highland Engineering Ltd v Thomson: 1972

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

Citations:

1972 SC 87

Jurisdiction:

England and Wales

Cited by:

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

Scotland, Company, Insolvency

Updated: 17 May 2022; Ref: scu.251596

In re English, Scottish and Australian Chartered Bank: 1893

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

Judges:

Vaughan Williams J

Citations:

[1893] 3 Ch 385

Cited by:

CitedCape Plc and Others, Re Companies Act 1985 ChD 16-Jun-2006
The court was asked to sanction a scheme of arrangements, and particularly to approve a proposed scheme which itself contained the power to make amendments to the scheme.
Held: The court did have power to sanction such a proposed scheme of . .
CitedMcGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, International

Updated: 17 May 2022; Ref: scu.244199

Re Eichholz: 1959

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

Judges:

Harman J

Citations:

[1959] Ch 708

Cited by:

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

Insolvency

Updated: 17 May 2022; Ref: scu.244177

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

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

Judges:

Russell LJ

Citations:

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

Statutes:

Companies Act 1948

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Insolvency, Company

Updated: 17 May 2022; Ref: scu.228992

In re Saunders (A Bankrupt): ChD 1997

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

Judges:

Lindsay J

Citations:

[1997] Ch 60

Statutes:

Insolvency Act 1986 130(2) 285

Citing:

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

Cited by:

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

Litigation Practice, Insolvency

Updated: 17 May 2022; Ref: scu.226025

Re Bullard and Taplin Ltd: ChD 1996

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

Judges:

Knox J

Citations:

[1996] BCC 973

Statutes:

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

Cited by:

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

Litigation Practice, Insolvency

Updated: 16 May 2022; Ref: scu.216396

Welsby v Brelec Installations Limited: ChD 2001

The CVA provided for the payment by the company of contributions to the supervisors for distribution to creditors. The company went on into a creditors’ voluntary liquidation.
Held: The sums held by the supervisors in trust for the CVA creditors remained subject to that trust notwithstanding the liquidation. Blackburne J said as to a CVA: ‘ . . the effect of the creditors’ approval of the debtors’ proposal is, as is well-established, to give rise to a species of statutory contract between the creditors bound by the arrangement on the one hand and the debtor on the other.’ and ‘An arrangement is usually put together in some haste. Mod~flcations to it are frequently made at the statutory meeting of creditors with little time to reflect on how they relate to the other terms of the debtor’s proposal. Quite often, as this case demonstrates, the resulting terms are clumsily worded. The arrangement ought therefore to be construed in a practical fashion. Otherwise there is a risk that careless drafting coupled with a too-literal approach to its construction will serve to frustrate rather than achieve the purpose of the arrangement.’

Judges:

Blackburne J

Citations:

[2001] BCC 421, [2002] 2 BCLC 576

Jurisdiction:

England and Wales

Cited by:

CitedWright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 16 May 2022; Ref: scu.605851

Tanner v Everitt: ChD 2004

Mann J discussed the status of an IVA in contract law: ‘The arrangement is therefore contractually based, with the statute providing the consent or deemed consent of the otherwise dissenting parties’

Judges:

Mann J

Citations:

[2004] EWHC 1130

Jurisdiction:

England and Wales

Cited by:

CitedWright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 16 May 2022; Ref: scu.605849

Commissioners of Inland Revenue v Adam and Partners Ltd: ChD 2000

Judges:

Nicholas Warren QC, DHCJ

Citations:

[2000] BCC 513

Jurisdiction:

England and Wales

Cited by:

CitedWright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 16 May 2022; Ref: scu.605848

British Eagle International Airlines Ltd v Compagnie National Air France: CA 1974

Judges:

Russell LJ

Citations:

[1974] 1 Lloyd’s Rep 429

Cited by:

Appeal fromBritish Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .
MentionedBelmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Contract

Updated: 15 May 2022; Ref: scu.442608

In re Edennote Ltd (No 2): ChD 1997

Sanction was sought against a liquidator. Lightman J said: ‘The question is the commercial best interests of the company, reflected prima facie, by the commercial judgment of the liquidator, a judgment in my view which, in the circumstances and in the light of the evidence in this case, ought to be given full weight.’

Judges:

Ligtman J

Citations:

[1997] 2 BCLC 89

Jurisdiction:

England and Wales

Citing:

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

Cited by:

CitedWhitehouse v Wilson (Liquidator of Vol-Mec Ltd) and Another CA 7-Dec-2006
. .
CitedGreenhaven Motors Limited (In Liquidation) and Another v BG Funding Limited and Another CA 31-Jul-1998
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 15 May 2022; Ref: scu.346609

Sir Robert Edward Wilmot, Baronet v Joseph Rose: 25 Apr 1854

Sect. 11 of the Act ‘To regulate the sale of farming stock taken in execution,’ 56 G. 3, e. 50, enacts that no assignee of any bankrupt or insolvent debtors’ estate, or under any bill of sale, nor any purchaser of the goods, chattels, stock or crop of any peraon employed in husbandry, on lands let to farm, shall use or dispose of any produce of such land in any other manner, and for any other purpose, than sucb bankrupt, insolvent, or other person employed in husbandry, ought to have used or disposed of the same if there had been no bankruptcy, assignment or sale made.-Held : that this prohibitioti as to purchasers is not confined to purchasers under an execution.

Citations:

[1854] EngR 424, (1854) 3 El and Bl 563, (1854) 118 ER 1253

Links:

Commonlii

Jurisdiction:

England and Wales

Agriculture, Insolvency

Updated: 15 May 2022; Ref: scu.293281

Simeon Warburg v William Owen Tucker: 12 Jun 1855

Defendant, being indebted to plaintiff, assigned to him, as security, an insurance ori defendant’s life, and an insurance on the life of defendant’s wife, and covenanted (1) to pay the premiums, (2) that, if he did not pay them, plaintiff might pay them and defendant would repay plaintiff. PlainItiff sued defendant on tbis covenant, assigning, as breaches of covenant, (1) that defendant had not paid the premiums, and (2) that defendant had not paid to plaintiff’ premiums paid by plaintiff in defendant’s default. Defendant, to the whole declaration, pleaded his bankruptcy and certificate, averring that they had occurred after the execution of the deed, but not that they had occurred after the breaches had taken place. Held, on demurrer to the plea: that the plea gave no answer to the declaration, neither of the plaintifYs claims being a debt payable upon Contingency, within sect. 177 of The Bankrupt Law Corisolidation Act, 1849 (12 and 13 Vict. e. lOS), nor a liability to pay money upon a contingency, within sect. 178.

Citations:

[1855] EngR 595, (1855) 5 El and Bl 384, (1855) 119 ER 524

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 15 May 2022; Ref: scu.292517

Smith v Secretary of State for Trade and Industry: EAT 15 Oct 1999

The claimant had been sole director of a company which went into liquidation. He sought a redundancy payment from the respondent under the 1996 Act. It was refused. The tribunal had applied Buchan. It had refused to hear an argument that the tribunal chairman was also employed by the respondent and could not therefore be independent.
Held: Although the Human Rights Act was not yet in force, when looking at a case which would be reheard after it has come into effect, it is right to allow for the Act. Article 6 of the Convention allows a fair trial, yet in this case, the bankrupt’s representative, and the tribunal hearing his case were both indirectly employees of the respondent. As a bankrupt, the claimant’s affairs were managed by the Official Reciver, again an employee of the respondent. The appellant should have been given chance to argue the point before the tribunal. In any event that fact that the claimant was a controlling shareholder did not of itself disqualify him from being an employee and entitled to a redindancy payment. His appeal was allowed.

Judges:

Morison J

Citations:

Times 15-Oct-1999, Gazette 10-Nov-1999

Statutes:

Human Rights Act 1998, European Convention on Human Rights and Fundamental Freedoms 6.1, Employment Rights Act 1996 166

Jurisdiction:

England and Wales

Citing:

CitedBuchan and Ivey v Secretary of State for Employment EAT 20-Jun-1996
. .
See AlsoSmith v Secretary of State for Trade and Industry EAT 13-Oct-1997
. .
CitedSecretary of State for Trade and Industry v Bottrill CA 12-Feb-1999
There is no rule of law, to suggest that a sole director and owner of majority of shareholding, could not be an employee of that company, and be entitled to a redundancy payment on the liquidation of the company. ‘If the tribunal considers that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Employment

Updated: 15 May 2022; Ref: scu.89343

Powdrill and Another v Watson and Another: HL 23 Mar 1995

A receiver of a companies assets, who employed former staff of the company, beyond an initial period of 14 days, becomes personally responsible for their employment contracts, and consequently becomes liable for making redundancy payments. The 1870 Act could be used to determine arrears of salary attributable to the period prior to the administrators’ appointment.
Lord Browne-Wilkinson said: ‘This ‘rescue culture’ which seeks to preserve viable businesses was and is fundamental to much of the Act of 1986. Its significance in the present case is that, given the importance attached to receivers and administrators being able to continue to run a business, it is unlikely that Parliament would have intended to produce a regime as to employees’ rights which renders any attempt at such rescue either extremely hazardous or impossible.’

Judges:

Lord Browne-Wilkinson

Citations:

Independent 23-Mar-1995, Gazette 03-May-1995, Times 23-Mar-1995, [1995] 2 AC 394

Statutes:

Insolvency Act 1986 19 44, Apportionment Act 1870 2

Jurisdiction:

England and Wales

Citing:

Appeal fromPowdrill and Another v Watson and Another CA 1-Mar-1994
The administrators of a company are deemed to have accepted the employees who had been kept on after 14 days. A letter from them denying that they would accept them as employees, was insufficient to prevent adoption of the contracts. . .

Cited by:

Appealed toPowdrill and Another v Watson and Another CA 1-Mar-1994
The administrators of a company are deemed to have accepted the employees who had been kept on after 14 days. A letter from them denying that they would accept them as employees, was insufficient to prevent adoption of the contracts. . .
CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
CitedKrasner v McMath; in Re Huddersfield Fine Worsteds Limited CA 12-Aug-2005
The administrators had adopted the contracts of certain employees, who now claimed that the protective awards should have priority to the expenses of the administration.
Held: The payments did fall within paragraph 99(5) and do not have . .
CitedFreakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
Lists of cited by and citing cases may be incomplete.

Employment, Insolvency

Updated: 15 May 2022; Ref: scu.84826

Morris and Others v Agrichemicals Ltd and Others: CA 20 Dec 1995

No mandatory set off on liquidation without the requirement for mutuality. The Court accepted a proposition that a chargeback arrangement was inefficiency, no implication followed as to the recourse against the Depositor of a collateral security.

Citations:

Times 08-Jan-1996

Statutes:

Insolvency Rules 1986 4.90

Jurisdiction:

England and Wales

Cited by:

CitedTam Wing Chuen v Bank of Credit and Commerce Hong Kong Ltd PC 1996
The Board considered a banking transaction and the application of a chargeback by the bank, under which a loan was made only after a deposit by a third party against which it was secured, and particularly in the context of the insolvency of the bank . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 15 May 2022; Ref: scu.83841

Jacobs v Official Receiver; In re Jacobs (a bankrupt): ChD 3 Apr 1998

The bankrupt was due to have his automatic discharge, but the Official Receiver applied on the day before for the discharge for an interim suspension of the discharge to allow consideration of his alleged lack of co-operation. The bankrupt said the court had no power to make such an order. The Official receiver had served his report, and there had been full compliance with Insolvency Rule 6.215, that the bankrupt was present and able to argue against the making of the bank interim order at the hearing.
Held: The court had to be satisfied that the grounds would, if unchallenged, have enabled the court to make an order under Section 279 (3). Since the court would be able to make a final order on an inter partes hearing, it also had a power to act on an interim basis. Once the bankrupt was discharged, the bankruptcy could not be revived. The appeal failed.
A court considering an application under section 279(3) may make an interim order suspending a bankrupts automatic discharge pending a full hearing of the Official Receiver’s application for such suspension.

Judges:

Michael Burton QC

Citations:

Times 16-Jun-1998, [1999] 1 WLR 619

Statutes:

Insolvency Act 1986 279(3)

Jurisdiction:

England and Wales

Citing:

CitedClydesdale Bank plc v Davidson and Others (Scotland) Clydesdale Bank plc v Davidson and Others HL 16-Oct-1997
(Scotland) Joint pro indiviso proprietors of land were not able at law to create a binding lease in favour of one of their number, so as to defeat the proper claims of a third party. A person cannot enter into a contract with himself.
Held: . .
CitedHardy v Focus Insurance Co (In Liquidation) ChD 19-Jul-1996
The Court has no power to direct the Official Receiver as to suspension of bankruptcy. . .
CitedWhittaker’s Trustee v Whittaker ScSf 1993
. .
CitedAmerican Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Cited by:

CitedBagnall 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: 15 May 2022; Ref: scu.82465

Clements and Another v Udall: ChD 7 Jul 2000

Where in an insolvency an office holder was not carrying out his prescribed functions, it was open to the court itself to appoint others to such tasks as were required. The power existed both under the court’s inherent jurisdiction, and under the Act. An application should be on notice save in emergency, but the court could make temporary appointments pending the on notice hearing.

Citations:

Times 07-Jul-2000, Gazette 27-Jul-2000

Insolvency

Updated: 15 May 2022; Ref: scu.79213

A Debtor v Focus Insurance Co Ltd (In Liquidation): ChD 12 Jul 1993

An expedited bankruptcy petition could be filed, despite the existence of an outstanding application to set aside the statutory demand on which it was based. Section 270 overrides section 267(2(d).

Judges:

Mummery J

Citations:

Times 12-Jul-1993

Statutes:

Insolvency Act 1986 270, Insolvency Rules 1986 (1986 No 1925)

Insolvency

Updated: 15 May 2022; Ref: scu.77574

Guinan III v Caldwell Associates: 2004

Citations:

[2004] BPIR 531, [2004] EWHC 3348 (Ch)

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 14 May 2022; Ref: scu.258441

In re Daisytek-ISA Ltd and others: 2004

The court was asked where the centre of main interests of French and German subsidiaries of ISA International plc was situated for the purposes of article 3.1 of the Regulation.
Held: After referring to recital (13) to the Regulation, to the commentary at paragraph 75 of the Virgos-Schmit Report and to the registrar’s decision in Skjevesland: ‘In my view the most important ‘third parties’ referred to in recital 13 are the potential creditors. In the case of a trading company the most important groups of potential creditors are likely to be its financiers and its trade suppliers. The evidence in this case is that the financing of the business of the German companies by a factoring agreement was organised for them by International in Bradford and that 70% of goods supplied to the German companies are supplied under contracts made by International in Bradford. It appears that a large majority of potential creditors by value (which I regard as the relevant criterion) know that Bradford is where many important functions of the German companies are carried out.’

Judges:

Judge McGonigal

Citations:

[2004] BPIR 30

Jurisdiction:

England and Wales

Citing:

CitedSkjevesland v Geveran Trading Company Limited ChD 2002
The registrar had decided that the debtor’s centre of main interests was situated in Switzerland.
Held: Article 3 of Regulation (EC) 1346/2000 did not displace the bankruptcy jurisdiction which (as the registrar found) the High Court would . .

Cited by:

CitedShierson v Vlieland-Boddy CA 27-Jul-2005
The debtor claimed that he could not be served with an insolvency petition, being resident in Spain.
Held: The court was to look to where was the centre of his main interests to determine whether to open insolvency proceedings. On that basis, . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 14 May 2022; Ref: scu.249853

In re Mark One (Oxford Street) plc: 1999

Jacob J referred to the inherent jurisdiction of the court with particular reference to Ex parte James.

Judges:

Jacob J

Citations:

[1999] 1 WLR 1445, [1999] 1 All ER 608

Statutes:

Insolvency Act 1986 14(3)

Cited by:

Not followedIn re Luna Metal Products Ltd (in Administration) CA 14-Dec-2006
The administrators held cash. They proposed a distribution giving creditors who would on a winding up be preferential, full preference. They appealed refusal by the court to sanction the proposal.
Held: The court had no power to make such an . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 14 May 2022; Ref: scu.247768

Marseilles Extension Rly and Land Co: 1867

The court considered the circumstances when a liquidator could be removed. The words ‘due cause’ did not require anything amounting to misconduct or personal unfitness. It was sufficient if it could be shown that it was on the whole desirable that a liquidator should be removed. It was a serious and valid objection to the liquidator’s efficiency that a considerable number of the creditors were opposed to his continuance in office: ‘I am of opinion that under the 141st section of the Act I have a discretionary power to remove the liquidators appointed by the company. The question is, what is meant by the words ‘On due cause shewn’? On one side it is contended that ‘due cause’ must be something amounting to misconduct or personal unfitness; on the other side it is contended, and I think that the contention is borne out by the case of Ex parte Pullbrook, that the Court may take all the circumstances into consideration and if it finds that it is, upon the whole, desirable that a liquidator should be removed, it may remove him.’

Judges:

Malins V-C

Citations:

(1867) LR 4 Eq 692

Statutes:

Companies Act 1862 141

Cited by:

CitedIn re Keypak Homecare Ltd ChD 1987
The court considered an application under section 108 to remove the liquidator, and reviewed the case law on the topic: ‘The section authorises the court to remove the liquidator ‘on cause shown’. That is not the same as saying ‘if the court shall . .
CitedQuickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 13 May 2022; Ref: scu.215938

Coulter v Chief Constable of Dorset Police: ChD 12 Dec 2003

The claimant had failed in an action for damages against the respondent, and had failed to pay the costs award. The respondent issued a statutory demand. He claimed that it was invalid because the chief constable had changed in the interim, and there had been no assignment of the benefit of the order.
Held: The office of chief constable was not a corporation, but an office. Some assignment was required. There was no statutory assignment, but there had been an equitable one. An equitable assignment need take no particular form: ‘All that is needed is a sufficient expression of an intention to assign’. Equity would treat as done that which ought to have been done.

Citations:

Times 24-Dec-2003, [2003] EWHC 3391, [2004] 1 WLR 1425

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.1

Jurisdiction:

England and Wales

Citing:

CitedAttorney-General for New South Wales v Perpetual Trustee Co Ltd PC 14-Mar-1955
(Australia) The Crown could not recover damages for the loss of the services of a police constable as the result of injuries caused by the negligence of a third person. A chief constable was an office held under the Crown, and the usual relationship . .

Cited by:

Appeal fromCoulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
See AlsoCoulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Police, Insolvency, Equity

Updated: 12 May 2022; Ref: scu.189946

In re EWA, A Debtor: CA 1901

The general rule is that where an obligation is joint and several, the release of one of two joint debtors has the effect of releasing the other, but: ‘It is clear that, although a document in terms purports to release one of two joint debtors, yet it may contain in terms a reservation of rights against the other joint debtor. Where you find those two provisions you construe the document, not as a release, but merely as an undertaking not to sue a particular individual, and the result is that the right to proceed against the co-debtor is reserved and can be put in force against him. Whenever you can find from the terms of the document an agreement for the reservation of rights against the co-debtor, then, I agree, the document cannot be construed as an accord and satisfaction of the joint debt, and, therefore, as a release of the co-debtor.’

Judges:

Collins LJ

Citations:

[1901] 2 KB 642

Jurisdiction:

England and Wales

Cited by:

CitedMatthews v Pournasrollahzadeh and Another CA 9-Mar-1998
The tenant fell into arrears, and discussed a surrender with the landlord. It had been intended that the landlord would waive any arrears, but he then claimed that there had been an implied surrender by law, and that the arrears remained.
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 May 2022; Ref: scu.187716

TSB Bank plc v Platts (No 2 ): 1997

Judges:

His Honour Judge Weeks Q.C

Citations:

[1997] BPIR 302

Jurisdiction:

England and Wales

Cited by:

Appeal fromPlatts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 May 2022; Ref: scu.184791

Re A Debtor (No.488 IO of 1996), JP v A Debtor: ChD 1999

The debtor had been ordered to pay his wife a sum by way of ancillary relief in matrimonial proceedings. He then proposed an IVA, which was approved at a creditors meeting. W had notice but did not attend. She along with all other creditors was to receive a part payment in full and final settlement. She applied to revoke the approval.
Held: She succeeded. She wife had a right not enjoyed by other creditors namely the freedom to assert her claim following the husband’s bankruptcy notwithstanding the husband’s discharge which right would be overreached if she was compelled to accept a dividend under the IVA in full and final settlement of her entitlement. She had been unfairly prejudiced to the extent that her special position had not been recognised.

Judges:

Sir John Vinelott

Citations:

[1999] 2 BCLC 571

Statutes:

Insolvency Act 1986 262

Jurisdiction:

England and Wales

Cited by:

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

Insolvency, Family

Updated: 11 May 2022; Ref: scu.402616

Regina v Lord Chancellor, ex parte Lightfoot: CA 18 Aug 1999

A debtor does not have a right, under the constitution to participate in any scheme for the relief of debt. Accordingly it was not ultra vires for the Lord Chancellor to provide no discretion on the payment of court fees by an intending applicant for bankruptcy. Such fees were used toward the administration of the applicant’s affairs.

Citations:

Times 18-Aug-1999, Gazette 11-Aug-1999

Statutes:

Insolvency Fees Order 1986 (1986 No 2030) 8(1) 9(b)

Jurisdiction:

England and Wales

Insolvency, Constitutional

Updated: 11 May 2022; Ref: scu.85375

Official Receiver v Environment Agency: CA 5 Aug 1999

A waste management licence could constitute both property and onerous property for the purposes of the Insolvency Act. It could also be an interest incidental to the land to which it related. Because of this the liquidator of a waste management company could disclaim the licence without committing an offence under the Act.

Citations:

Times 05-Aug-1999

Statutes:

Environmental Protection Act 1990 33 34, Insolvency Act 1986 178(3), 436

Jurisdiction:

England and Wales

Environment, Insolvency

Updated: 11 May 2022; Ref: scu.84428

Masters and Others v Leaver: CA 2 Sep 1999

A judgment obtained by default against a bankrupt in a foreign jurisdiction, was not sufficient evidence of itself, to establish that the debt which it proved had been obtained or created by fraud, or by a fraud to which they were a party. The party had been debarred from defending himself, and a finding on those terms could not mean that the debt should survive a bankruptcy here.

Citations:

Gazette 02-Sep-1999, Times 05-Aug-1999

Statutes:

Insolvency Act 1986 281 (3)

Jurisdiction:

England and Wales

Insolvency, International

Updated: 10 May 2022; Ref: scu.83466

In Re Lee (A Bankrupt): CA 22 Aug 1999

The court has sufficient discretion to order that the surplus proceeds of sale of a leasehold interest could be paid to the liquidator despite his having himself disclaimed any interest in the lease. Nobody else had claimed an interest, and the creditors should receive the benefit. This was sensible despite the apparent termination of the liquidator in the lease.

Citations:

Times 22-Aug-1999

Statutes:

Insolvency Act 1986 320 315(3)

Jurisdiction:

England and Wales

Citing:

Appeal fromIn Re Lee (A Bankrupt) ChD 24-Feb-1998
An order vesting a lease disclaimed by the trustee in bankruptcy, in a mortgagee, may provide that any profit which is made on a re-sale of the lease was to be paid on to the receiver for the benefit of creditors. . .

Cited by:

Appealed toIn Re Lee (A Bankrupt) ChD 24-Feb-1998
An order vesting a lease disclaimed by the trustee in bankruptcy, in a mortgagee, may provide that any profit which is made on a re-sale of the lease was to be paid on to the receiver for the benefit of creditors. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 May 2022; Ref: scu.82003

Midland Banking Co v Chambers: 1869

Citations:

(1869) LR 4 Ch App 398

Jurisdiction:

England and Wales

Cited by:

CitedIn re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
CitedIn re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 10 May 2022; Ref: scu.238734

In Re A and C Supplies Limited: ChD 17 Oct 1997

Applications were made for the removal of a liquidator from several appointments in corporate nd individual insolvencies. He had been a partner in a firm and that had ceased in a way which left it impossible to work with his former partners to perform his duties.
Held: The appointments were personal, and the only practical course was for his removal. The court has jurisdiction to make such an order under the 1986 Act. The more testing question was as to whether the court could make an alternative appointment. Though there was no such express power in the Act, the rules presupposed it.

Judges:

Blackburne J

Citations:

Unreported, 17 October 1997

Statutes:

Insolvency Act 1986 108(2) 172(2)

Jurisdiction:

England and Wales

Citing:

CitedRe Bridgend Goldsmiths Limited and Others ChD 1995
The High court may not exercise its jurisdiction under section 263 of the 1986 Act within a voluntary arrangement within the county court. . .
CitedJohn Abbott and others No 00137 of 1997 ChD 1997
Having exercised its power under s41 to remove liquidators and supervisors, the court had power itself to appoint replacement officers. The existing practitioner had ceased to hold the appropriate authorisation. . .
CitedRe Bullard and Taplin Ltd ChD 1996
Tne question of whether there was at any time ‘pending court proceedings’ was answered by asking if there existed a court file. The section empowered a court itself to appoint another trustee in bankruptcy. Section 41 of the 1984 Act could be used . .
CitedIn re Sankey Furniture Ltd, ex parte Harding; Re Calorifique Limited, ex parte Betts ChD 1995
Separate applications were made by liquidators of companies in variously voluntary or compulsory liquidation and otherwise. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 07 May 2022; Ref: scu.246700

In re Designer Room Ltd: ChD 2005

Judges:

Rimer J

Citations:

[2005] 1 WLR 1581

Jurisdiction:

England and Wales

Cited by:

CitedIn re Luna Metal Products Ltd (in Administration) CA 14-Dec-2006
The administrators held cash. They proposed a distribution giving creditors who would on a winding up be preferential, full preference. They appealed refusal by the court to sanction the proposal.
Held: The court had no power to make such an . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 07 May 2022; Ref: scu.247766

In re Harris Simons Construction Limited: ChD 1989

The section gives the court jurisdiction to make an administration order if it ‘(a) is satisfied that a company is or is likely to become unable to pay its debts’ and ‘(b) considers that the making of an order . . would be likely to achieve’ one or more of the purposes specified in s8(3). The court had to consider the meaning of the word ‘likely’.
Held: ‘likely’ connotes probability but the particular degree of probability intended must be gathered from qualifying words (very likely, quite likely, more likely than not) or context. It cannot be a misuse of language to say that something is likely without intending to suggest that the probability of its happening exceeds 0.5. The legislature seemed to intend to set a modest threshold of probability to found jurisdiction and to rely on the court’s discretion not to make orders in inappropriate cases.

Judges:

Hoffmann J

Citations:

[1989] 1 WLR 368

Statutes:

Insolvency Act 1986 8(1)

Jurisdiction:

England and Wales

Cited by:

CitedCream Holdings Limited and others v Banerjee and The Liverpool Daily Post and Echo Limited CA 13-Feb-2003
The defendants considered publication of alleged financial irregularities by the claimant, who sought to restrain publication. The defendants argued that under the Act, prior restraint should not be used unless a later court would be likely to . .
CitedCream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
CitedLachaux v Independent Print Ltd (1) CA 12-Sep-2017
Defamation – presumption of damage after 2013 Act
The claimant said that the defendant had published defamatory statements which were part of a campaign of defamation brought by his former wife. The court now considered the requirement for substantiality in the 2013 Act.
Held: The defendant’s . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 06 May 2022; Ref: scu.182935

Metalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd: CA 7 Oct 1996

A costs order against liquidator of company in litigation is only rarely to be given. The court should ask who is the ‘real’ party to the litigation.
Millett LJ said: ‘[An order] may be made in a wide variety of circumstances where the third party is considered to be the real party interested in the outcome of the suit … It is not, however, sufficient to render a director liable for costs that he was a director of the company and caused it to bring or defend proceedings which he funded and which ultimately failed. Where such proceedings are brought bona fide and for the benefit of the company, the company is the real plaintiff. If in such a case an order for costs could be made against a director in the absence of some impropriety or bad faith on his part, the doctrine of the separate liability of the company would be eroded and the principle that such orders should be exceptional would be nullified. The position of a liquidator is a fortiori. Where a limited company is in insolvent liquidation, the liquidator is under a statutory duty to collect in its assets. This may require him to bring proceedings. … If he brings the proceedings in the name of the company, the company is the real plaintiff and he is not. He is under no obligation to the defendant to protect his interests by ensuring that he has sufficient funds in hand to pay their costs as well as his own if the proceedings fail.’

Judges:

Millet LJ

Citations:

Times 12-Dec-1996, [1997] 1 WLR 1613, [1996] EWCA Civ 670, [1996] EWCA Civ 671, [1997] BCC 165, [1998] 1 Costs LR 85, [1997] 1 All ER 418

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

CitedDymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
CitedBE Studios Ltd v Smith and Williamson Ltd ChD 2-Dec-2005
The claimant company had failed in its action. The court was asked to make a costs order personally against the principal director of the claimant who had controlled the litigation and funded it. He responded that no impropriety had been shown on . .
CitedDolphin Quays Developments Ltd v Mills and others CA 17-May-2007
The owner had agreed to sell a long lease of an apartment to the defendant. Part of the price was to be by way of set off of an existing debt, but ths was not set out in the contract. The claimant bought the land and the benfit of the contract from . .
CitedLingfield Properties (Darlington) Ltd v Padgett Lavender Associates QBD 18-Nov-2008
Application for non-party costs order against litigation funder. The third party denied that he was a person against whom an order could be made, and denied his formal involvement in the companies funding the litigation.
Held: Such an order . .
CitedGoknur v Aytacli CA 13-Jul-2021
Third Party Costs – Director of Insolvent Company
(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant . .
CitedHB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 05 May 2022; Ref: scu.83673

In Re A Debtor (No 303 of 1997): ChD 3 Oct 2000

A former partner in a firm was not to be heard to claim a set off of sums due to him in the accounting following the break up of the firm, against sums claimed for an indemnity claimed against him by the other partners in respect of payments made by them as trustees to satisfy partnership obligations in a lease of premises occupied by the partnership.

Citations:

Times 03-Oct-2000

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 04 May 2022; Ref: scu.81655

Parsons v McBain: 5 Apr 2001

Federal Court of Australia – BANKRUPTCY – constructive trust – transfer of property to beneficiary – whether void as against trustee in bankruptcy
EQUITY – equity of exoneration – how defeated
TRUSTS – ‘common intention constructive trust’ – whether trustee in bankruptcy takes subject to trust – time at which trust ari
A surety, or a person in the position of a surety, has a right of exoneration whereby he or she is entitled to be indemnified by the principal debtor against any liability incurred as a consequence of being called on to pay the debt, describing it as an incident of the relationship between surety and principal debtor.
‘Where co-owners mortgage their property so that money can be borrowed for the benefit of one mortgagor, the other co-owner will be treated as if he or she was a surety and the equity of exoneration will also arise. In those circumstances that other has an interest in the property of the co-mortgagor whose property is to be regarded as primarily liable to pay the debt: Parsons at [21], Duncan, Fox and Co v North and South Wales Bank (1880) 6 App Cas 1 at 10.
However, the right to exoneration is lost where the surety receives a benefit from the loan or the funds raised in respect of which the charge has been given. ‘So, if the borrowed funds are applied to discharge the surety’s debts, the surety could not claim exoneration, at least in respect of the benefit received.’
Here, the giving of the [Brighton Westpac mortgage] might have created a relationship whereby Mr Mogilevsky would be treated as a surety and Mrs Mogilevsky would be treated as principal debtor if:
the mortgage was for the purpose of raising money to benefit the co-owner, in this case Mrs Mogilevsky;
the money borrowed was used for that purpose; and
Mr Mogilevsky derived no benefit from the money so raised.’

Judges:

Black CJ, Kiefel, Finkelstein JJ

Citations:

[2001] FCA 376, (2001) 109 FCR 120, 192 ALR 772

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedArmstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Trusts

Updated: 04 May 2022; Ref: scu.581747

Re Jogia (A Bankrupt): 1988

Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to serve out cannot resist an application challenging the jurisdiction by pleading a new cause of action. A claim for unjust enrichment, in the absence of a contractual relationship between the parties, and other than claims to land, are governed by the law of the place of enrichment.
Sir Nicolas Browne-Wilkinson V-C said (obiter): ‘As at present advised, I am of the view that quasi-contactual obligations of this kind arise from the receipt of the money. I find it difficult to see how such obligation can be said to be ‘made’ or ‘arise’ in any place other than that of receipt. As to the proper law, Dicey and Morris, the Conflict of Laws, 10th edn. (1980), p.921 expresses the view that, save in cases where the obligation to repay arises in connection with a contract or an immoveable, the proper law of the quasi-contact is the law of the country where the enrichment occurs. This accords with the American Restatement and seems to me to be sound in principle.’

Judges:

Nicolas Browne-Wilkinson V-C

Citations:

[1988] 1 WLR 484, [1988] 2 All ER 328

Citing:

AppliedParker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .

Cited by:

CitedNML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 04 May 2022; Ref: scu.441564

Bracy’s Case: 1738

He was committed by commissioners of bankruptcy, and the conclusion of the commitment was, until he conform himself to our authority, and be thence delivered by due course of law.

Citations:

[1738] EngR 150, (1688-1710, 1738) Holt KB 94, (1738) 90 ER 950 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 02 May 2022; Ref: scu.385543

Bracy’s Case EngR 334: 1792

Commissioners of bankrupts may ask a witness when and in what manner he had been aiding in carrying away the bankrupt’s goods and what he knew of the bankrupt’s goods even from a time before the bankruptcy.

Citations:

[1792] EngR 334, (1792) 1 Ld Raym 99, (1792) 91 ER 962 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Insolvency

Updated: 02 May 2022; Ref: scu.358546