Ellis-Carr v Levy (Home Rights : Requirements To Establish Interest): LRA 19 Nov 2013

LRA Family Law Act 1996 – home rights notice – meaning and effect of ‘intention’ in statute – Applicant’s evidence – property never occupied as a matrimonial home – whether husband ever had entitlement to occupy by virtue of a beneficial estate or interest or application – application opposed by Applicant’s husband’s trustee in bankruptcy – effect of orders relating to property made by Registrar Derrett in the bankruptcy upheld by Norris J on appeal – Mental Capacity Act 2005 – CPR 21 – s283A Insolvency Act – s261 Enterprise Act 2002

Judge Hargreaves
[2013] LRAD 2012 – 1122
Bailii
Family Law Act 1996

Registered Land, Family, Human Rights, Insolvency

Updated: 01 December 2021; Ref: scu.521988

Salliss v Hunt and Others: ChD 10 Feb 2014

The bankrupt appealed from a refusal of his challenge to the remuneration claimed by his trustees in that bankruptcy.
Held: On an an application for annulment of a bankruptcy, there was no need of principle why the court should allow for a debt due to a creditor, where that creditor knew of the bankruptcy but had not proved for it and had made a proper and commercial decision not to do so in the future.

Sir Terence Etherton Ch
[2014] EWHC 229 (Ch), [2014] 2 All ER 1002, [2014] BPIR 754, [2014] 1 WLR 2402, [2014] WLR(D) 56
Bailii, WLRD
Insolvency Act 1986, Insolvency Rules 1986
England and Wales

Insolvency

Updated: 29 November 2021; Ref: scu.521173

Bishop v Golstein: CA 5 Feb 2014

Maurice Kay LJ VP CA, Sullivan, Briggs LJJ
[2014] EWCA Civ 10, [2014] WLR(D) 75, [2014] 2 WLR 1448, [2014] 1 Ch 455, [2014] 3 All ER 397
Bailii
England and Wales
Citing:
See AlsoGolstein v Bishop ChD 2-May-2013
. .

Cited by:
See AlsoGolstein v Bishop and Another ChD 2-Sep-2016
Appeal against refusal of challenge to approval on an Individual Voluntary Arrangement. . .
See AlsoGolstein v Bishop and Another ChD 7-Nov-2016
. .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 29 November 2021; Ref: scu.521042

Jack and Another (London Scottish Finance Ltd) v Craig and Others: ChD 17 Dec 2013

Application by the joint administrators of LSF for directions arising out of loan agreements made or acquired by LSF before the administration began, under which secured loans were made to consumers but which were unenforceable because they contravened provisions of the Consumer Credit Act 1974.
Held: The phrase ‘realisation of the security’ in section 106, is to be interpreted conventionally to achieve the policy objective (section 113) that the security provided under the regulated agreement could not be enforced so as to benefit the creditor to any greater extent than would be the case if the security were not provided. In a secured loan to which section 106(d) applied, the provisions did not catch all sums paid by the debtor in discharge of the loan.

Sir Terence Etherton Ch
[2013] EWHC 4047 (Ch), [2013] WLR(D) 498, [2014] Bus LR 424, [2013] CTLC 231
Bailii, WLRD
Insolvency Act 1986, Consumer Credit Act 1974 106(d)

Insolvency, Consumer, Banking

Updated: 27 November 2021; Ref: scu.519223

Re Storm Funding Ltd: ChD 18 Dec 2013

‘The administrators of 14 companies in the Lehman Brothers group apply for directions as to the potential liabilities of those companies to make payments to or for the benefit of the Lehman Brothers Pension Scheme (the scheme) established principally for the benefit of persons employed by Lehman Brothers Limited (LBL) but seconded to work for other group companies. ‘

David Richards J
[2013] EWHC 4019 (Ch), [2014] Bus LR 454, [2014] Pens LR 73, [2013] WLR(D) 502
Bailii, WLRD
Insolvency Act 1986

Insolvency

Updated: 27 November 2021; Ref: scu.519226

Brown and Another (Joint Administrators of Oceancrown Ltd) v Stonegale Ltd: SCS 11 Dec 2013

Administrators sought to have set aside transactions made before the companies went into administration.
Held: Rejecting the director’s arguments, the Lord Ordinary said: ‘No one paid anything for 110, 210, 260 Glasgow Road and 64 Roslea Drive. The sellers, namely Oceancrown, Loanwell and Questway, did not receive anything in return for the dispositions under challenge. They gifted the properties to the dispones . . That the bank was prepared to discharge the standard securities over all five properties in return for the monies forwarded to it does not create a consideration given in return for the subsequent dispositions to Stonegale. No party gave the sellers anything in return for the conveyances under challenge. Any value received was the value paid in respect of number 278. That is what was transferred to McClure Naismith. In my view nothing else alters that basic fact. All that happened was that Strathcroft, on the direction of Mr Pelosi senior, paid the bank monies which were designed to, and did persuade the bank to discharge the standard securities over the five properties, all in order to facilitate the subsequent gratuitous sales. Neither that payment, nor any consequential reduction in indebtedness, was in consideration for the subsequent transactions. It was a mechanism for allowing the inter-company transfers which it was hoped would achieve the retention of the ‘profit’ on 278 within the group (and regarding Roslea Drive, Mr Pelosi junior) – and free of the bank’s securities.’ . . And ‘The dispositions under challenge were gratuitous alienations. Were it otherwise the bank would have received in excess of andpound;4m, and the overall indebtedness would have been reduced by that amount. The price obtained for 278 was used to allow the other Glasgow Road properties to be transferred without consideration to another company which, nominally at least, was owned and controlled by Mr Pelosi junior, and, in the case of 64 Roslea Drive, to him personally.’

Lord Ordinary Lord Malcom
[2013] ScotCS CSOH – 189
Bailii
Insolvency Act 1986 242
Cited by:
Appeal fromBrown and Another v Stonegale Ltd and Another SC 22-Jun-2016
The insolvent companies administrators sought reduction of alienations by the companies before entering into administration. It was said that their banker lenders had been misled as to the values of secured properties, agreeing to their release . .

Lists of cited by and citing cases may be incomplete.

Scotland, Insolvency

Updated: 27 November 2021; Ref: scu.519235

Re International Tin Council: ChD 1987

An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J said: ‘The statutory trusts extend to [foreign] assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme.’
The court said that it was to ask the question, ‘Could Parliament reasonably have intended that the International Tin Council should be subject to the winding-up process of the UK insolvency legislation?’
Millet J said of the nature of corporate insolvency: ‘Although a winding up in the country of incorporation will normally be given extra-territorial effect, a winding up elsewhere has only local operation. In the case of a foreign company, therefore, the fact that other countries, in accordance with their own rules of private international law, may not recognise our winding up order or the title of a liquidator appointed by our courts, necessarily imposes practical limitations on the consequences of the order. But in theory the effect of the order is world-wide. The statutory trusts which it brings into operation are imposed on all the company’s assets wherever situate, within and beyond the jurisdiction. Where the company is simultaneously being wound up in the country of its incorporation, the English court will naturally seek to avoid unnecessary conflict, and so far as possible to ensure that the English winding up is conducted as ancillary to the principal liquidation. In a proper case, it may authorise the liquidator to refrain from seeking to recover assets situate beyond the jurisdiction, thereby protecting him from any complaint that he has been derelict in his duty. But the statutory trusts extend to such assets, and so does the statutory obligation to collect and realise them and to deal with their proceeds in accordance with the statutory scheme.’

Millet J
[1987] Ch 419, [1987] 2 WLR 1229, [1987] 1 All ER 890
England and Wales
Citing:
See AlsoMaclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
Appeal fromRe International Tin Council CA 1989
Creditors sought to treat the International Tin Council as an ‘association’ for the purposes of a provision under the Companies Act 1985 allowing for unregistered companies to be wound up.
Held: The decision in Re a Company was binding. The . .
CitedHackney v Side By Side (Kids) Ltd QBD 14-Jul-2003
The defendant sought a stay of a warrant for possession. It had submitted to an order for possession by consent in return for a promise of alternative accomodation. They sought a stay under section 89, saying that the claimant had not complied with . .
CitedMcGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
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.
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.

Company, Insolvency, Jurisdiction

Updated: 19 November 2021; Ref: scu.185746

Clarke v Cognita Schools Ltd (T/A Hydesville Tower School): ChD 1 Apr 2015

The claimants sought to have set aside statutory demands served to enforce judgmens, they said under a discrepancy. The order refusing their application should they said, have notified them of their right to appeal.
Held: None of the applicable rules expressly required otification that an appeal was available.

Newey J
[2015] EWHC 932 (Ch), [2015] WLR 3776, [2015] 2 All ER (Comm) 663, [2015] BPIR 444, [2015] WLR(D) 164, [2015] 1 WLR 3776, [2016] 1 All ER 477
Bailii, WLRD
Insolvency Act 1986 264, Insolvency Rules 1986, Civil Procedure Rules 3.3(5)
England and Wales

Insolvency, Civil Procedure Rules

Updated: 12 November 2021; Ref: scu.545433

Horton 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 policies, were he to exercise his contractual rights under those policies to draw down a lump sum or other payments.
Held: The trustee’s appeal failed. The bankrupt could not be obliged to take a lump sum from his pension funds so that it could to be treated as an income to supprot an Income Payment Order. Section 310 did not allow a reading which characterises a pension holder’s contractual rights under their pension to elect, after reaching a certain age, to draw down, or ‘crystallise’ that pension, in the form of a lump sum or income payments. Such an entitlement was after acquired property, and not available to the trustee.
The judge in Raithatha had failed properly to allow for the depth of changes introduced by the 1999 Act.

McFarlane, Gloster LJJ, Sir Stanley Burnton
[2016] EWCA Civ 989, [2016] WLR(D) 506
Bailii, WLRD
Insolvency Act 1986 310, Welfare Reform and Pensions Act 1999 11
England and Wales
Citing:
CitedRaithatha v Williamson ChD 4-Apr-2012
A bankrupt’s present entitlement to compel payment of pension benefits fell to be included in the assessment of his income within the meaning of section 310(7) of the Insolvency Act. . .
CitedHorton v Henry ChD 17-Dec-2014
The trustee in bankruptcy sought to oblige the bankrupt to make a capital draw on pension fund assets in order to support an Income Payment Order.
Held: The judge dismissed the application for an IPO. The court had no power under section 310 . .
CitedIn 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 . .
CitedDennison 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 . .
CitedBlight and Others v Brewster ChD 9-Feb-2012
A judgment creditor, applied for an order requiring Mr Brewster, his judgment debtor, to elect to draw down a lump sum from his pension in order to enable the judgment creditor to obtain a third party debt order against the pension trustees.
CitedIn the Estate of Borger Deceased 1912
Supreme Court Victoria – Will – Construction – Legacy, lapse of – Death of beneficiary ‘before he shall have become entitled,’ meaning of.
A testator devised his real estate to trustees upon trust for his brother J until his youngest surviving . .
CitedBarclays Bank Plc v Holmes and others ChD 21-Nov-2000
. .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 November 2021; Ref: scu.570113

Williams v Glover and Another: ChD 4 Jun 2013

The company’s liquidator had refused to assign to its former directors a claim for a reduction in corporation tax which they were funding.
Held: Such a claim did not constitute property within section 436, and was not a chose capable of assignment. All that could be assigned would be the right to appeal. Since the former directors were no longer officers of the company they could not act in its name to pursue the appeal.

Pelling QC HHJ
[2013] EWHC 1447 (Ch), [2014] 1 WLR 166, [2013] BPIR 576, [2014] 1 BCLC 474, [2013] WLR(D) 223, [2014] 2 All ER 448
Bailii, WLRD
Insolvency Act 1986 436
England and Wales
Citing:
CitedTorkington v Magee 11-Jul-1902
Chose in Action defined
The effect of the 1873 Act was essentially procedural and it did not render choses in action that had not previously been assignable in equity capable of assignment.
Channell J defined a debt or other legal chose in action: ”Chose in Action’ . .
CitedHeath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Leading Case

Updated: 11 November 2021; Ref: scu.510171

Lewis and Another v Metropolitan Property Realizations Ltd: ChD 21 Nov 2008

Nothing in the 2003 changes to the 1986 Act operated so that a trustee in bankruptcy who sold an interest of the bankrupt for a deferred payment had not realised the interest. Accordingly, on the bankrupt’s release, that interest had been assigned out of the bankrupt’s estate and did not revert to him.

Proudman J
[2008] EWHC 2760 (Ch), Times 09-Dec-2008
Bailii
Insolvency Act 1986 283A(3)(a), Enterprise Act 2002 8261
England and Wales

Insolvency

Updated: 11 November 2021; Ref: scu.278233

In re Horsley and Weight Ltd: CA 1892

The liquidator sought to set aside a pension policy acquired by the company for the benefit of a retiring director. The question was whether the decision to acquire the pension had been ratified by the shareholders.
Held: There had been no misfeasance by the directors.
A company is bound in a matter which is intra vires the company by the unanimous agreement of its members, even where that agreement is given informally and without any meeting.
Templeman LJ said: ‘There could have been gross negligence, amounting to misfeasance. If the company could not afford to pay out andpound;10,000 and was doubtfully solvent so that the expenditure threatened the continued existence of the company, the directors ought to have known the facts and ought at any rate to have postponed the grant of the pension until the financial position of the company was assured.’
Cumming-Bruce LJ referred to a suspicion that at the time of the decision the company was not in a position to pay the money to the respondent. But that evidence ‘fell far short of proof that the directors should at the time have appreciated that the payment was likely to cause loss to the creditors’.
Buckley LJ emphasised that the good faith of the directors was not questioned and there was no suggestion that they had failed to apply their minds honestly to the question whether the decision was a fair and proper thing for the company to do in the light of the company’s financial state as known to them at the time.

Templeman, Cumming-Bruce LJ
[1982] Ch 442, [1982] 3 WLR 431, [1982] 3 All ER 1045
England and Wales

Company, Insolvency

Leading Case

Updated: 11 November 2021; Ref: scu.570504

Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd: ChD 6 Mar 2018

IVA is a special form of contract

Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on its cessation. The liquidators challenged the clause as a penalty.
Held: The additional sums falling due to Prudential upon the termination of the CVA were payable as an administration expense or administration expenses for the period during which the (original) administrators were in possession of the premises for the purposes of the administration. Although the arrangement was a contract, not all laws applicable to contracs applied to it. The law of penaties applied to protect a party suffering after some oppressive contract creation circumstance. An IVA was a creature of statute, and its terms set by the company’s representatives, and no element of negotiation arose and therefore there was no opportunity to argue repression of for a penalty.

Christopher Pymont QC
[2018] EWHC 402 (Ch), [2018] WLR(D) 143
Bailii, WLRD
Insolvency Act 1986 112
England and Wales
Citing:
CitedJohnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
CitedCommissioners of Inland Revenue v Adam and Partners Ltd ChD 2000
. .
CitedLloyds Bank Plc v Ellicott CA 8-Feb-2002
A voluntary arrangement has contractual effect. . .
CitedCooden Engineering Co Ltd v Stanford CA 1953
A payment to be made on a wrongful termination of a lease by a tenant, will attract consideration of the law of penalties, for notwithstanding the requirement for acceptance of it, the amount to be paid is, ‘plainly a sum to be paid in consequence . .
MentionedCampbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
CitedTanner 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’ . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedThompson v Hudson HL 1869
An agreement is not penalty if it simply reserves to a creditor the right to have his debt paid in full in the event that his debtor does not pay on a due date a smaller sum that he has agreed to accept in satisfaction
Lord Hatherley said: ‘I . .
CitedEveritt v Budhram and Another ChD 20-May-2009
The trustee in bankruptcy appealed against rejection of his claim for the sale of the home in which the bankrupts each held a one half share. The bankruptcies arose from non payment of council tax. The principle sums had been repaid, and the . .
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
CitedPhilips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
CitedSea Voyager Maritime Inc and Others v Bielecki trading as Hughes Hooker and Co ChD 23-Oct-1998
The creditor alleged a right to recover against the estate citing an unfair prejudice from the IVA.
Held: He had been unfairly prejudiced. The IVA precluded him, like all the other unsecured creditors, from suing the debtor for the full amount . .
CitedWelsby 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 . .
CitedIn re Lundy Granite Co; Ex parte Heavan CA 1871
The landlord of Lundy Island, which was let to a third party, distrained upon goods of the company which had been left upon the tenant’s property. The distraint was for rent which had fallen due more than a year after the winding up order. The . .
CitedIn re Smith and Hartogs 1895
A landlord agreed to a reduction of the rent payable for the time being, with the balance in effect being added to the rent payable later in the term. The tenant failed to pay the reduced rent.
Held: The landlord was entitled to distrain for . .
CitedIn re ABC Coupler and Engineering Co Ltd (No 3) ChD 1970
The liquidator when appointed closed down the business which had been conducted on the premises, had the company’s plant and machinery valued and thought about what he should do.
Held: The rent did not become a liquidation expense until some . .
CitedIn re Downer Enterprises Ltd ChD 1974
The company was the assignee of a lease. The rent appears to have been payable in advance on the usual quarter days. The company went into liquidation in November 1971. At some time before April 1972 the liquidator instructed agents to market the . .
CitedBelmont 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 . .
CitedPillar Denton Ltd and Others v Jervis and Others CA 24-Feb-2014
The corporate tenant became insolvent, but the administrators continued in occupation. The parties now disputed whether the rent (payable in advance) was a provable debt or an administration expense.The court was asked whether a company in . .
CitedOakrock Ltd v Travelodge Hotels Ltd and Others TCC 16-Jan-2015
Application by the first defendant for summary judgment against the claimant for the whole of the claim on the ground that the claim has no real prospect of success and that there is no other compelling reason why the case should be disposed of at . .
CitedNarandas-Girdhar and Another v Bradstock CA 16-Feb-2016
Appeal from rejection of claim to have set aside Individual Voluntary Arrangement . .
CitedIn re Silkstone and Dodworth Coal and Iron Co ChD 1881
A mining lease provided that the rent was payable half-yearly in arrears. Rent became payable after presentation of the winding-up petition and a winding-up order was made after the rent became payable. The lease was subject to a proviso for . .
CitedShackell v Chorlton 1895
. .
CitedRe HH Realisations Ltd ChD 1975
The liquidator of a company ceased to be liable to pay the rent under the company’s lease in full from the time it gave notice to the landlord that it was seeking authority to disclaim the lease, even though it remained in occupation for nearly two . .
CitedPeekay Intermark Ltd v Australia and New Zealand Banking Group Ltd CA 6-Apr-2006
Moore-Bick LJ discussed whether the court should give effect to a non-reliance clause in a contract saying: ‘It is common to include in certain kinds of contracts an express acknowledgement by each of the parties that they have not been induced to . .
CitedTrident Turboprop (Dublin) Ltd v First Flight Couriers Ltd Comc 17-Jul-2008
Trident entered into Aircraft Operating Lease Agreements in identical terms with First Flight in respect of two ATP model aircraft. The leases represented the culmination of negotiations between a representative of the manufacturer, BAE Systems . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 10 November 2021; Ref: scu.605847

Harms Offshore AHT Taurus Gmbh and Co KG v Bloom and Others: CA 26 Jun 2009

The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The statutory prohibition against creditors bringing proceedings against a company being wound up by the court is not extra-territorial. The protection of the assets of a company in administration is not to be regarded by the Court as differing in substance from the protection of the assets of a company in compulsory liquidation. In both cases, the assets of the company are dealt with by an officer appointed by the Court in accordance with statutory duties.
The conduct of the Appellants and the circumstances of the attachments brought it into the exceptional category in which the grant of injunctive relief is justified, notwithstanding comity and notwithstanding the outstanding application of the Administrators in New York.

Lord Justice Ward, Lord Justice Stanley Burnton and Sir John Chadwick
[2009] EWCA Civ 632, Times 10-Jul-2009, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349
Bailii
Insolvency Act 1986
England and Wales
Citing:
CitedIn Re Oriental Inland Steam Company ex parte Scinde Railway Company CA 1874
The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . .
CitedMitchell v Carter ChD 1997
Section 183 of the 1986 Act, which precludes a creditor who levies execution or attaches a debt after commencement of a winding up, from retaining the benefit of his execution or attachment, does not apply to executions or attachments in foreign . .
CitedRe Vocalion (Foreign) Ltd 1932
The section only applies only to proceedings pending in the UK, and not to proceedings in a foreign Court. The Court has an equitable jurisdiction in personam to restrain a respondent properly served in this country from proceeding with an action . .
CitedSociete Nationale Industrielle Aerospatiale v Lee Kui Jak, Yong Joon Kim and, Lee Kui Jak (F) PC 14-May-1987
Brunei Darussalam – The Board was asked where a civil claim should be tried.
Held: The court stated some principles governing the grant of anti-suit injunctions restraining foreign proceedings. The inconvenience of a forum is of itself not a . .
CitedPolly Peck International Plc v The Marangos Hotel Company Ltd and Others CA 7-May-1998
Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . .
CitedBarclays Bank v Homan CA 1993
If the conduct of a creditor can be castigated as oppressive or vexatious the Court can and should grant relief in order to protect the performance by administrators of their functions and duties. . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insolvency

Leading Case

Updated: 09 November 2021; Ref: scu.347220

USDAW And Wilson v WW Realisation 1 Ltd, in liquidation: ECJ 30 Apr 2015

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Collective redundancies – Directive 98/59/EC – Article 1(1)(a) – Meaning of ‘establishment’ – Method of calculating the number of workers made redundant

T von Danwitz, P
C-80/14, [2015] EUECJ C-80/14, ECLI:EU:C:2015:291
Bailii
Directive 98/59/EC 1(1)(a)
European

Employment, Insolvency

Updated: 09 November 2021; Ref: scu.546229

Trillium (Nelson) Properties Ltd v Office Metro Ltd: ChD 9 May 2012

Winding-up petition in which the principal issue is whether or not Office Metro Limited can be wound up in this jurisdiction in the light of the fact that, despite its being an English registered company, its centre of main interest is in Luxembourg. The question which was to be determined was whether or not it had an ‘establishment’ in this country for the purposes of the Insolvency Regulation.
Mann J explained what amounted to economic activity within the meaning of the Regulation: ‘ However, I do not think that it amounts to economic activity within the meaning of the Regulation. By the time of the petition it seems that the only ‘activity’ (and I deliberately put it in inverted commas) was to sit there being liable on guarantees, sometimes paying out on them, and perhaps doing whatever else was necessary to keep itself alive in terms of compliance with formalities such as company filings. Mr Wetheral (or perhaps his staff) occasionally sought legal or accounting advice, but there is no evidence it was doing anything else. Being in a state of liability, with the need sometimes to pay out on that liability and take a bit of advice, is not an economic activity for the purposes of the Regulation. Neither is seeking accounting or legal assistance on other matters. Forwarding post (which is said to have happened at Chertsey) is not an economic activity carried on there. It is something which goes on so that someone can carry it on somewhere else. Utilising the guidance given in the Virgos-Schmit report, it is not conducting activities on the market.
The activities necessary for compliance (filing and so on) are not, apparently, carried out at the Chertsey office. They are therefore not carried out at the only candidate for a place of operations.
Even if I am wrong as to whether Office Metro’s residual activities are economic activity for the purposes of the Regulation, I do not consider that they are non-transitory. They are not a consistent activity. The activities involved in paying up on guarantees do not have the character of a consistent business or business-type activity. They arise as and when needed, and were all going well in the underlying group they would not arise at all. The concept of ‘establishment’ is the one chosen as the touchstone of sufficient presence to justify the opening of insolvency proceedings. There are three ingredients for these purposes: (i) a place where things happen, and (ii) sufficient things (iii) of sufficient quality happening there. The concept of non-transitoriness goes to the third of them. In my view the converse of something being transitory is not confined merely to things which are ‘fleeting’ (to use one English synonym) but is also intended to encapsulate such things as the frequency of the activity; whether it is planned or accidental or uncertain in its occurrence; the nature of the activity; and the length of time of the activity itself. When measured against all these elements I consider that the activities of procuring payment on the guarantees is transitory (or not non-transitory) for the purposes of the Regulation. This is to a large extent a value judgment in respect of which one cannot be prescriptive of the elements to be fulfilled (or not fulfilled), but in my view it is plain that if the activities were otherwise economic activities they would, for these purposes, be ‘transitory’ for the purposes of the Regulation.’

Mann J
[2012] EWHC 1191 (Ch), [2012] ILPr 30, [2012] BCC 829, [2012] BPIR 1049
Bailii
EU Regulation 1346/2000 3
Cited by:
CitedOlympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa ChD 29-May-2012
Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an . .
CitedOlympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
CitedOlympic Airlines Sa Pension and Life Assurance Scheme, The Trustees of The v Olympic Airlines Sa SC 29-Apr-2015
The airline was incorporated in Greece but with an office in the UK. It became insolvent leaving a deficit in the UK employee pension scheme. The trustees of the fund sought a secondary insolvency within the UK, and now a reference to the European . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Jurisdiction

Leading Case

Updated: 09 November 2021; Ref: scu.457573

Williams v Lawrence and Another: ChD 28 Jul 2011

The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in favour of one of the purchaser, one of the defendants, and therefore reduced in value.
Held: The effect of Regulation 12 was to allow such an application to go back much further than could happen in a normal insolvency, but in this case, at the time of the transfer, the parties knew of the estate’s debts. On the facts, no common intention to create a binding right was established, and therefore the sale was at a gross undervalue, and was to be set aside.

David Cooke J
[2011] EWHC 2001 (Ch)
Bailii
Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986/1999)
England and Wales
Citing:
CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
CitedPascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
CitedKernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
CitedJames v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency, Trusts

Updated: 09 November 2021; Ref: scu.442271

In re Brightlife Ltd: ChD 1987

Parties contractual freedom to be respected

A clause in a debenture gave a charge which provided that the chargor should not: ‘deal with its book or other debts or securities for money otherwise than in the ordinary course of getting in and realising the same which expression shall not authorise the selling, factoring or discounting . . of its book debts or other negotiable instruments’
Held: Whilst purporting to create a fixed charge over present and future book debts and imposing restrictions on the sale, factoring or discounting of book debts, the debenture did not require the chargor to pay them into an account with the chargee. Reference to a ‘first specific charge’ over book debts had to yield to the only conclusion from the rights in fact granted that the charge over book debts was a floating charge only.
Hoffmann J said: ‘But a floating charge is consistent with some restriction upon the company’s freedom to deal with its assets. For example, floating charges commonly contain a prohibition upon the creation of other charges ranking prior to or pari passu with the floating charge. Such dealings would otherwise be open to a company in the ordinary course of its business.’ and
‘I do not think that the bank balance falls within the term ‘book debts or other debts’ as it is used in the debenture. It is true that the relationship between banker and customer is one of debtor and creditor. It would not therefore be legally inaccurate to describe a credit balance with a banker as a debt. But this would not be a natural usage for a businessman or accountant. He would ordinarily describe it as ‘cash at bank’: compare the balance sheet formats in Part I, section B of Schedule 4 to the Companies Act 1985′ and ‘In this debenture, the significant feature is that Brightlife was free to collect its debts and pay the proceeds into its bank account. Once in the account, they would be outside the charge over debts and at the free disposal of the company. In my judgment a right to deal in this way with the charged assets for its own account is a badge of a floating charge and is inconsistent with a fixed charge.’
The significant feature of the Brightlife debenture was that the company was free to collect its debts and pay the proceeds into its bank account: ‘Once in the account, they would be outside the charge over debts and at the free disposal of the company. In my judgment a right to deal in this way with the charged assets for its own account is a badge of a floating charge and is inconsistent with a fixed charge.’
The company had given a charge over its book debts to te bank. The bank asserted that it was a first specific charge and purported to restrict the company’s right to factor its debts without the bank’s consent. A debenture holder then gave notice to fix the charge, but only a week before a voluntary winding up resolution.
Held: The charge on the book debts was a floating charge, and having crystallised a week before, it had priority over the other debts.
Although clause 3(A)(ii)(a) referred to a ‘first specific charge’ over book debts and others, ‘the rights over the debts created by the debenture were in my judgment such as to be categorised in law as a floating charge.’ . . And a ‘significant feature is that Brightlife was free to collect its debts and pay the proceeds into its bank account. Once in the account, they would be outside the charge over debts and at the free disposal of the company. In my judgment a right to deal in this way with the charged assets for its own account is a badge of a floating charge and is inconsistent with a fixed charge . . I do not think that it is open to the courts to restrict the contractual freedom of parties to a floating charge on such grounds. The floating charge was invented by Victorian lawyers to enable manufacturing and trading companies to raise loan capital on debentures . . without inhibiting its ability to trade. . The public interest requires a balancing of the advantages to the economy of facilitating the borrowing of money against the possibility of injustice to unsecured creditors . . arguments for and against the floating charge are matters for Parliament rather than the courts.’

Hoffmann J
[1987] 1 Ch 200, [1988] VLY 306
England and Wales
Citing:
DistinguishedSiebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
DistinguishedIn Re Keenan Bros Ltd 1986
(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior . .

Cited by:
AppliedAgnew and Kevin James Bearsley v The Commissioner of Inland Revenue, and Official Assignee for the Estate In Bankruptcy of Bruce William Birtwhistle and Mark Leslie Birtwhistle PC 5-Jun-2001
(New Zealand) A charge had been given by a company over its book debts. The charge was expressed to create a fixed charge over debts uncollected when a receiver was appointed, so that on collection they became payable to the bank. Until the receiver . .
CitedNational Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
ConsideredRe: A Company (No. 005009 of 1987), ex parte Copp ChD 1988
MC Bacon Ltd had borrowed money from a bank. The loan was unsecured. The company got into financial difficulty. The bank commissioned a report on the company’s financial affairs; and insisted on the grant of a debenture to secure the company’s . .
AppliedRe: New Bullas Trading Ltd ChD 5-Apr-1993
A fixed charge in a debenture without restrictions on dealing with monies received must be a floating charge. . .
CitedBuchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
CitedNational Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
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 Westmaze Ltd (In Administrative Receivership) ChD 15-May-1998
Westmaze were mechanical engineers. They gave a charge to secure borrowings, which described itself as a fixed charge.
Held: A Charge over a company’s book and trading assets was in fact floating even though described as a fixed charge unless . .

Lists of cited by and citing cases may be incomplete.

Banking, Company, Insolvency

Leading Case

Updated: 09 November 2021; Ref: scu.181234

Federatie Nederlandse Vakvereniging and Others: ECJ 22 Jun 2017

Employee protection limited on pre-pack insolvency

ECJ Reference for a preliminary ruling – Directive 2001/23/EC – Articles 3 to 5 – Transfers of undertakings – Safeguarding of employees’ rights – Exceptions – Insolvency proceedings – ‘Pre-pack’ – Survival of an undertaking : Judgment

[2017] WLR(D) 417, ECLI:EU:C:2017:489, [2017] EUECJ C-126/16
WLRD, Bailii
Council Directive 2001/23/EC
European

Insolvency, Employment

Updated: 09 November 2021; Ref: scu.588266

Wilson v United Counties Bank Ltd: HL 1920

Bank’s duty to client’s reputation and credit

Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business affairs and to take reasonable steps to maintain his credit and reputation. Major Wilson was made bankrupt and he and his trustee in bankruptcy joined in an action against the bank. The jury awarded damages of about andpound;45,000 for depreciation in the bankrupt’s business and estate caused by the bank’s negligence (although the House was not unanimous as to whether this finding was justified on the evidence) and andpound;7,500 for damage to his credit and reputation.
Held: The former sum was recoverable by the trustee in bankruptcy, and the latter by the bankrupt personally, even though the damages arose from the same breach of contract.
Lord Birkenhead applied Rolin, saying: ‘The defendants undertook for consideration to sustain the credit of the trading customer. On principle the case seems to me to belong to that very special class of cases in which a banker, though his customer’s account is in funds, nevertheless dishonours his cheque. The ratio decidendi in such cases, is so obviously injurious to the credit of the trader that the latter can recover, without allegation of special damage, reasonable compensation for the injury due to his credit.’
Lord Atkinson said: ‘If one man inflicts an injury upon another the resort by the sufferer to reasonable expedients for the bona fide purpose of counteracting, curing or lessening the evil effects of the injury done him, does not necessarily absolve the wrongdoer, even though the sufferer’s efforts should, in the result, undesignedly aggravate the result of injury.’

Lord Atkinson, Lord Birkenhead LC
[1918-19] All ER Rep1035, [1920] LR AC 102, [1920] AC 102
England and Wales
Citing:
CitedBeckham v Drake HL 11-Jul-1849
Non-property assets do not pass on bankruptcy
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this . .
FollowedRolin And Another v Steward, Public Officer of The East of England Bank 8-May-1854
Substantial damages may be recovered against a banker, for dishonouring an acceptance and cheques of a customer, there being sufficient assets in his hands at the time to meet them. . .

Cited by:
CitedMulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedShah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
CitedKpohraror v Woolwich Building Society CA 10-Jan-1996
The defendants had wrongfully refused payment of the claimant’s cheque for pounds 4,550. The error was realised on the same day, and corrected. The master awarded damages of pounds 5,550 as general damages to the claimant’s credit by reason of the . .
CitedKpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Insolvency, Damages, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.185413

Ralph Schmid (Acting As Liquidator of The Assets of Aletta Zimmermann) v Lilly Hertel: ECJ 16 Jan 2014

ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Action to set a transaction aside by virtue of the debtor’s insolvency – Defendant resident in a third country – Jurisdiction of the court of the Member State where the debtor has the centre of his main interests

A. Tizzano, P
[2014] EUECJ C-328/12, [2014] 1 WLR 633, [2014] BPIR 504, [2014] WLR(D) 5, [2014] CEC 846, ECLI:EU:C:2014:6, [2014] 1 WLR 633, [2014] ILPr 11
Bailii, WLRD
Regulation (EC) No 1346/2000
European
Citing:
OpinionRalph Schmid (Acting As Liquidator of The Assets of Aletta Zimmermann) v Lilly Hertel ECJ 10-Sep-2013
ECJ Opinion – Judicial co-operation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Jurisdiction of the court of the Member State in which the centre of the debtor’s main interests is . .

Cited by:
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Leading Case

Updated: 02 November 2021; Ref: scu.520760

McGrath and others v Riddell and others: HL 9 Apr 2008

(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Held: Once it was accepted that an English court may order the liquidator here to remit funds to a foreign liquidator, it was clear that that foreign liquidator would apply the local rules for distribution: ‘the court had jurisdiction at common law, under its established practice of giving directions to ancillary liquidators, to direct remittal of the English assets, notwithstanding any differences between the English and foreign systems of distribution. These differences are relevant only to discretion.’
Lord Hoffmann (with whom Lord Walker was in full agreement) said that remission could be ordered at common law. He referred to a ‘general principle of private international law that bankruptcy (whether personal or corporate) should be unitary and universal. There should be a unitary bankruptcy proceedings in the court of the bankrupt’s domicile which receives worldwide recognition and it should apply universally to all the bankrupt’s assets.’ this was ‘a principle rather than a rule . . heavily qualified by exceptions on pragmatic grounds.’ and ‘The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross-border insolvency law since the 18th century. That principle requires the English courts, so far as is consistent with justice and UK public policy, co-operate with the courts in the country of the principal liquidation to ensure that all the company’s assets are distributed to its creditors under as single system of distribution.’
Lord Scott, whilst agreeing that it is desirable as a general proposition that there should be one universally applicable scheme of distribution of the assets of an insolvent company, did not agree with Lord Hoffmann that the court had power to remit the assets to Australia other than pursuant to the statutory power.
Lord Neuberger’s speech was to the same effect in this regard.
Lord Phillips agreed that it was in accordance with international comity and the principle of universalism that the assets should be remitted to Australia pursuant to the statutory power but did not stray into the ‘controversial area’ of whether, in the absence of statutory jurisdiction, the same result could have been reached under a discretion available under the common law

Lord Hoffmann, Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
Times 09-Apr-2008, [2008] UKHL 21, [2008] 1 WLR 852, [2008] BPIR 581, [2008] Lloyd’s Rep IR 756, [2008] BCC 349, [2008] 3 All ER 869, [2008] Bus LR 905
Bailii, HL
Insolvency Act 1986 426
England and Wales
Citing:
CitedRe Matheson Brothers Ltd 1884
The court appointed a provisional liquidator to protect the English assets of a New Zealand company which was being wound up in New Zealand. Kay J said: ‘[What] is the effect of the winding up order which it is said has been made in New Zealand? . .
CitedRe International Tin Council ChD 1987
An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J . .
Appeal fromMcGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
CitedCambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
CitedIn the Matter of Drax Holdings Limited and in the Matter of InPower Limited ChD 17-Nov-2003
A company incorporated in Jersey comes within the Act for the purposes of the section. An English court has jurisdiction to wind up a foreign company if it has assets here or some other sufficient connection with this country. . .
CitedRe Bank of Credit and Commerce International SA (No 10) ChD 1997
An English court has power in an ancillary liquidation (provisional or final) to authorise the English liquidators to transmit the English assets to the principal liquidators in the company’s home country. The bases for this are the principles of . .
CitedForster v Wilson 1843
English law regards insolvency set off as a way of achieving substantial justice between the parties. . .
CitedRe Dallhold Estates (UK) Pty Ltd ChD 1992
The court discussed the the receipt and acceptance of a letter of request: ‘The scheme of subsection (5) appears to me to be this. The first step is to identify the matters specified in the request. Secondly, the domestic court should ask itself . .
CitedEngland v Smith CA 8-Dec-1999
A liquidator of an Australian company sought damages from a ‘world-wide’ company Arthur Andersen’ and sought in particular to examine a partner in the UK. Examination was at first refused since an English court would not make a similar order. That . .
CitedRe Paramount Airways Ltd (In Administration) CA 8-Apr-1992
It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
CitedIn 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 . .
CitedAyerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
CitedRe Suidair International Airways Ltd 1951
Insolvency law may enable the court to apply a foreign law. Wynn-Parry J said: ‘It appears to me that the simple principle is that this court sits to administer the assets of the South African company which are within its [i.e. the English court’s] . .

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

Lists of cited by and citing cases may be incomplete.

Insolvency, International

Leading Case

Updated: 02 November 2021; Ref: scu.266540

Regina v Kearns: CACD 22 Mar 2002

The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide information infringed his right of silence and to a fair trial.
Held: The provisions were not an infringement of the defendant’s rights. The offence was one of strict liability, but the onus of proof remained upon the prosecution. At the time when the demand for information was made, there was no charge against the defendant, and it was not an attempt to obtain evidence to support a criminal charge by ‘coercion or oppression in defiance of the will of the accused’ within Saunders, and evidence received could not be used in criminal proceedings. In any event the right to silence is not absolute, and the provision was proportionate and necessary.
Aikens J said: ‘There is a distinction between the compulsory production of documents or other material which had an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there was no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances.’

Lord Justice Kennedy, Mr Justice Aikensand Mr Justice Pitchford
Times 04-Apr-2002, Gazette 10-May-2002, [2002] EWCA Crim 748, [2002] 1 WLR 2815, [2003] 1 CAR 7, [2002] BPIR 1213, [2003] 1 Cr App R 7, [2002] Crim LR 653
Bailii
Insolvency Act 1986 354(3)(a), European Convention on Human Rights 6
England and Wales
Citing:
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 . .
CitedAttorney-General’s Reference (No 7 of 2000) CACD 29-Mar-2001
The defendant had been convicted of offences under the Insolvency Act. Evidence of his gambling was found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs . .

Cited by:
CitedC Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
cplc_pChD2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
CitedC Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
ApprovedHundal and Dhaliwal, Regina v CACD 3-Feb-2004
The defendants appealed against conviction and sentence for membership of an organisation proscribed under the 2000 Act. The defendants said that at the time they joined the organisation was not proscribed, and had left before it became proscribed. . .
CitedRegina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
CitedGreater Manchester Police v Andrews Admn 23-May-2011
The CC appealed by case stated against a refusal of an order under the 2000 Act for the disclosure by the defendant of a cryptography key. The defendant had a history of sexual offences against children and had failed to keep to the terms of a . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Human Rights, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.169830

Arbuthnot Leasing International Ltd v Havelet Leasing Ltd (No 2): ChD 1990

Complaint was made that before the insolvency, the director of the compay had put its assets beyond the creditors. He replied that had acted so on legal advice: ‘Mr Maughan stressed . . that what he did he did on legal advice from solicitors and counsel and without any dishonest intent. . . however, seem to me that it is by itself an answer to a sec. 423 application. Subsection (3) refers to the requirement, if relief under the section is to be granted, that the court must be satisfied that the transaction was entered into for the purpose of putting assets beyond the reach of a person who is making, or may at some time make, a claim against the company. The fact that lawyers may have advised that the transaction is proper or can be carried into effect does not by itself mean that the purpose of the transaction was not the subsec. (3) purpose. It seems to me that, beyond any argument, that was the purpose for which these transactions were made. Mr Maughan formed the view that the litigation against Leasing and the judgments that were liable to be obtained would ruin Leasing’s business and would be detrimental to Leasing’s creditors, not simply Arbuthnot but the other banks as well. Mr Maughan’s motive of saving Leasing’s business was not necessarily a dishonest motive, but is consistent with an intention to put Leasing’s assets out of the reach of Arbuthnot. But for the transfers that Mr Maughan put into effect. Leasing would have had a business and assets to which recourse could have been had in satisfaction or part-satisfaction of the judgment debt that, at the time of the transfers, Arbuthnot was seeking and that shortly thereafter it succeeded in obtaining. Execution against those assets probably would, I accept, have done very great damage to Leasing’s business. It may have done damage also to the underlying interests of the other creditors, such as the other banks. But, nonetheless, Leasing’s assets were deliberately put out of the reach of Arbuthnot. The only asset left against which execution could be levied was Leasing’s right to receive quarterly-in-arrears payments from Finance.
Was the transaction at an undervalue? Subsection (1) provides that a transaction is at an undervalue if the consideration is ‘significantly less than the value, in money or money’s worth, of the consideration provided’ by the transferor. The consideration provided by the transferor in respect of the transfers of the LPs was the benefit of the income stream. The consideration coming back to Leasing consisted of the quarterly-in-arrears payments. In addition, the capital assets of Leasing, apart from the LPs, were transferred to Finance for the purpose of enabling Finance to carry on an ongoing business. It is right, in my judgment, to regard the transactions whereby Leasing’s business was transferred to Finance as one transaction. This transaction was, in my judgment, a transaction at an undervalue within the meaning of that expression in subsec. (1) of sec. 423 .’

Scott J
[1990] BCC 636
Insolvency Act 1986 423
England and Wales

Insolvency

Leading Case

Updated: 02 November 2021; Ref: scu.570506

Armstrong 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 share.
Held: The trustee’s appeal failed. The equity of exoneration was part of the relief generally made available to sureties against a principal debtor, subject to exceptions supported by evidence that a contrary intention existed or where it could be inferred from the circumstances that the equity should not apply. It had in the past been applied to family units outside marriage.

Vos Ch, David Richards LJJ, Sir Patrick Elias
[2017] EWCA Civ 268, [2017] WLR(D) 271,
Bailii, WLRD
Married Women’s Property Act 1882
England and Wales
Citing:
CitedPaget v Paget CA 1898
The plaintiff wife was ‘a lady of fortune’, with the bulk of her property settled on her for life for her separate use without power of anticipation. They ‘moved in good society and, large as their income was, they lived far beyond it.’ They were . .
CitedGee v Liddell ChD 1913
A co-mortgagor has an ‘interest in [and] a charge upon the estate of the principal debtor’. An equity of exoneration was applied as between brothers.
An equity of exoneration operates in the nature of ‘a charge upon the estate of the principal . .
CitedRe a debtor (No 24 of 1971), ex parte Marley (J) v Trustee of the property of the debtor ChD 1976
The court will look to the realities of the relationship between the mortgagors and will not be governed by the terms of the mortgage instrument if they do not accord with the actual facts.
Held: the court accepted that an equity of . .
Citedin Re Berry (a bankrupt) 1978
A married couple opened a joint bank account. H’s business fell into difficulties and overdraft facilities were arranged, secured by a mortgage over their jointly-owned house. The account was used both for the husband’s business and for household . .
CitedParsons 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 . .
CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
ApprovedHall v Hall ChD 1911
An equity of exoneration in favour of a wife arises ‘at the time she charges her estate’. The doctrine of exoneration is based on an inference in each case from all the facts of that particular case. Where one co-habitee joins in granting a charge . .
CitedIn Re Pittortou (a bankrupt) ChD 1985
H and W charged the property to secure the H’s overdrawn bank account. The account was used both for his business and for payment of expenses relating to the matrimonial home. H was adjudicated bankrupt. W sought her equity to be exonerated from H’s . .
CitedCadlock v Dunn and Another ChD 13-May-2015
The equity of exoneration could be applied for a wife who had charged her beneficial half share of the matrimonial property to secure a loan to her husband to enable him to re-acquire his half share from his trustee in bankruptcy. The wife obtained . .
CitedGraham-York v York and Others CA 10-Feb-2015
The claimant challenged a possession order made in respect of the house she occupied, alleging a constructive trust in her favour. The house had been occupied by the unmarried co-habiting couple for nearly 25 years before the death of one of them. . .
CitedRe Chawda (in bankruptcy) 2014
Mr Chawda and his wife jointly owned a residential property which they charged to secure a loan, part of which refinanced the original purchase loan. The case concerned the balance of about 78,000 pounds. Mr Chawda and his brother carried on . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 02 November 2021; Ref: scu.581738

In re Hydrodam (Corby) Limited: ChD 1994

ET plc wholly owned MCP Ltd which wholly owned Landsaver MCP Limited, which wholly owned Hydrodam (Corby) Limited (‘HCL’). The only de jure directors of HCL were two Channel Island companies. HCL went into compulsory liquidation and its liquidator brought claims under section 214 of the 1986 Act for wrongful trading against 14 defendants, including ET, one of its subsidiaries and all its directors. Two of those directors were Mr Thomas and Dr Hardwick, who applied for the proceedings against them to be struck out.
Held: The liquidator had failed to plead or adduce any evidence to support the allegation that the directors of Eagle Trust were at any material time directors of Hydrodam, and the proceedings were struck out.
Directors may be of three kinds: ‘de jure directors, that is to say those who have been validly appointed to the office; de facto directors, that is to say, directors who assume to act as directors without having been appointed validly or at all; and shadow directors who are persons falling within the definition I have read [‘a person in accordance with whose directions or instructions the directors of the company are accustomed to act’]’
Millett J then explained that liability under section 214 extended to de facto as well as to de jure and shadow directors, but the statutory liability was ‘imposed exclusively upon directors of one or other of the three kinds that I have mentioned.’ That meant that the liquidator had to plead and prove against each defendant that he was such a director of HCL.
He explained the difference between a shadow and a de facto director, saying that the latter ‘is one who claims to act and purports to act as a director, although not validly appointed as such.’ A shadow director does not so claim or purport. HCL had two titular directors, namely the two Channel Island companies, a fact that might itself justify the inference that they were accustomed to act in accordance with the directions of others, in which case those others would be shadow directors. But no such case was pleaded.
Millett J said: ‘The liquidator submitted that where a body corporate is a director of a company, whether it be a de jure, de facto or shadow director, its own directors must ipso facto be shadow directors of the company. In my judgment that simply does not follow. Attendance at board meetings and voting, with others, may in certain limited circumstances expose a director to personal liability to the company of which he is a director or its creditors. But it does not, without more, constitute him a director of any company of which his company is a director.’

Millett J
[1994] 2 BCLC 180
Insolvency Act 1986 214
England and Wales
Cited by:
CitedHolland v Revenue and Customs and Another CA 2-Jul-2009
The appellant supported IT workers. Through his own company, he set up companies in which his company was a director, and which companies in turn employed the IT workers securing substantial savings in higher rate Corporation Tax.
Held: The . .
CitedHolland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .

Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Leading Case

Updated: 02 November 2021; Ref: scu.377315

Eurofood IFSC (Area Of Freedom, Security and Justice): ECJ 2 May 2006

ECJ Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Decision to open the proceedings – Centre of the debtor’s main interests – Recognition of insolvency proceedings – Public policy.
The centre of a debtor’s main interests must be identified by reference to criteria that are both objective and ascertainable by third parties, in order to ensure legal certainty and foreseeability concerning the determination of the court with jurisdiction to open the main insolvency proceedings. That requirement for objectivity and that possibility of ascertainment by third parties may be considered to be met where the material factors taken into account for the purpose of establishing the place in which the debtor company conducts the administration of its interests on a regular basis have been made public or, at the very least, made sufficiently accessible to enable third parties, that is to say in particular the company’s creditors, to be aware of them.

V. Skouris, P
C-341/04, [2006] EUECJ C-341/04, [2006] 3 WLR 309, [2006] BCC 397, [2006] ILPr 23, [2006] Ch 508, [2006] ECR I-3813, [2006] BPIR 661, [2006] All ER (EC) 1078, [2007] 2 BCLC 151, ECLI:EU:C:2006:281
Bailii
Regulation (EC) No 1346/2000
European
Cited by:
CitedOlympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Leading Case

Updated: 02 November 2021; Ref: scu.241362

York Buildings Co v Mackenzie: SCS 8 Mar 1793

Purchase by Common Agent at Auction Voidable

The defendant was the ‘common agent’ for the sale of the assets of an insolvent partnership and purchased some of the assets at a judicial auction.
Held: The purchase was voidable, even though it was made at a sale by auction.
Who bears the Expense of a Ranking and Sale? – Election of the Common Agent. – Can the Common Agent be a Purchaser? – Expense of an interim Warrant. The Common agent in a ranking is disqualified from purchasing at the judicial sale carried on under his direction.

Lord Cranworth
3 Paton 378, (1795) 3 ER 432
Commonlii
Scotland
Cited by:
CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
At Court of SessionThe Governor And Company of Undertakers For Raising Thames Water In York Buildings v Alexander Mackenzie, Writer, To The Signet PC 15-May-1795
Who bears the Expense of a Ranking and Sale? – Election of the Common Agent. – Can the Common Agent be a Purchaser? – Expense of an interim Warrant. . .

Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Leading Case

Updated: 01 November 2021; Ref: scu.220725

Heath v Tang, Stevens v Peacock: CA 11 Aug 1993

The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to pursue an appeal; in the second, no trustee had been appointed.
Held: A bankrupt may not personally appeal against the judgment on which the bankruptcy order made. The court set out the duties of court in supervising actions for and against a bankrupt. The jurisdiction conferred by s.303(1) protects a bankrupt from injustice which might otherwise be caused by his inability to bring proceedings outside the bankruptcy jurisdiction and, in an appropriate case, permits a bankrupt to apply for an order that the trustee must make an application or bring a claim or allow the bankrupt to conduct proceedings in the name of the trustee.
Hoffmann LJ noted that the bankrupt’s estate vests in his trustee when appointed under section 306 of the 1986 Act, and, under section 285(3) no creditor has, after the making of a bankruptcy order, any remedy against the property or person of the bankrupt in respect of debts provable in the bankruptcy. The effect is ‘that the bankrupt ceases to have an interest in the either his assets or his liabilities except in so far as there may be a surplus to be returned to him upon his discharge.’

Hoffmann LJ
Independent 14-Oct-1993, Times 11-Aug-1993, [1993] 4 ALL ER 694, [1993] 1 WLR 1421
Insolvency Act 1986 306 285(3)
England and Wales
Cited by:
CitedCoulter 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 . .
CitedThames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
CitedWilliams v Glover and Another ChD 4-Jun-2013
The company’s liquidator had refused to assign to its former directors a claim for a reduction in corporation tax which they were funding.
Held: Such a claim did not constitute property within section 436, and was not a chose capable of . .
CitedWordsworth v Dixon CA 1997
The bankrupt had been a defendant in the action brought by the plaintiff. The court considered his standing to appeal.
Held: The right to appeal vested in the trustee. Sir Thomas Bingham MR referred to the case of Heath v Tang and said: ‘that . .
CitedSingh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
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, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.81297

Alderson and Others, Assignees v Temple: 1746

Payment Anticipating Bankruptcy was Void

A debtor may not pay a creditor on the eve of his bankruptcy, with the intention of preferring that creditor over others – to do so is void as a fraud on the bankruptcy laws and n creditors generally because ‘it is defeating the equality that is introduced by the statutes of bankruptcy and the criminal (for the bankrupt is considered as a criminal) is taking upon himself to prefer whom he pleases’.

Lord Mansfield
[1746] EngR 5, (1746-1779) 1 Black W 660, (1746) 96 ER 384, (1768) 1 Wm Bl 660
Commonlii
Fraudulent Conveyances Act 1571
England and Wales

Insolvency

Leading Case

Updated: 02 November 2021; Ref: scu.380393

Re County Marine Insurance Co (Rance’s Case): 1870

The directors of an insurance company had declared a bonus by means of a an account of receipts which failed to deal properly with the risks underwritten. They then sought to have the company wound up voluntarily.
Held: The Directors could be ordered to repay the bonuses declared and paid.
Where a bonus was decided upon after a proper investigation and account, the court should be slow to iinterfere, but where there had been no such investigation it was able to intervene.

(1870) LR 6 Ch App 104, (1870) 40 LJ Fh 277, (1870) LT 828, (1870) WR 291 LJ
England and Wales
Cited by:
CitedHolland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .

Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Leading Case

Updated: 01 November 2021; Ref: scu.467095

Poulton v Ministry of Justice: CA 22 Apr 2010

The claimant was trustee in bankruptcy but the court failed to register the bankruptcy petition at the Land Registry as a pending action. The bankrupt was therefore able to sell her land, and the trustee did not recover the proceeds. The trustee sought to recover from the defendant who was responsible for the court service.
Held: The defendant’s appeal succeeded. The obligation under rule 6.13 and the court’s practice of complying with it, and would not imply that the court would serve the request itself. The contrasting provisions of the various Acts suggested an obligation to compensate: ‘Parliament had in mind the possibility that creditors might suffer from a failure on the part of the Land Registry to comply with its duties under section 61, and considered that a private claim against the Registry should not be permitted but that compensation should be provided for out of the insurance fund. By contrast, no such provision was made in the Land Charges Act, so that the Chief Land Registrar might be taken to be open to suit for failure under that Act. Equally there was no immunity for the court under rule 149A, so, again, a breach of that duty might be taken to be actionable.’ However, ‘The fact that occasionally there may be a failure due to oversight does not seem to me to be a sufficient reason to find a private remedy for breach of the obligation created by this rule.’ The freedom of the applicant to make an application indicated against giving a private right.
There was no basis for an assertion of a common law duty: ‘this is not a question of a duty of care; it would be a duty to do an act, which is either done or not done, and the complaint would be of failure to do it at all, not of doing it but without proper care and attention. Another is that, absent the obligation imposed by the rule, the petitioning creditor would have every reason to make the request itself, as it would be entitled to do. The only basis for saying that the creditor places reliance on the court is that the rule requires the court to give the notice.’

Pill, Lloyd, Pitchford LJJ
[2010] EWCA Civ 392, [2010] 3 WLR 1237, [2010] BPIR 775, [2011] 1 Ch 1
Bailii
Land Registration Act 2002, Insolvency Act 1986 284, Insolvency Rules 1986 6.13, Land Charges Act 1972
England and Wales
Citing:
CitedCutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
CitedX (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
CitedMinistry of Housing and Local Government v Sharp CA 1970
Mr Sharp was the local land registrar with statutory duty to maintain the local registry, issuing certificates in response to search requests. A clerk who had been seconded by another Council to assist him negligently issued an inaccurate . .
CitedSmith (a bankrupt) v Braintree District Council HL 1989
The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Negligence

Updated: 01 November 2021; Ref: scu.408567

Simmonds v Pearce: Admn 1 Dec 2017

Own compulsory statements used against bankrupt

Application to commit the Respondent to prison for breaches of various provisions of the Insolvency Act which are said to constitute deliberate, repeated, and serious contempt of court.
Held: Such applications should be dealth with under CPR r81.15 in Chancery. Statements obtained under compulsion via Section 433 might be set against the bankrupt without infringing his privilege against self incrimination.

Gloster DBE LJ, Andrews DBE J
[2017] EWHC 3126 (Admin), [2017] WLR(D) 803
Bailii, WLRD
Insolvency Act 1986 433(1)
England and Wales

Insolvency

Updated: 01 November 2021; Ref: scu.602596

Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd: CA 16 Jan 1976

The seller sold aluminium to the defendant, but included a clause under which they retained title in the materials sold, even if mixed in with manufactured goods, until they had been paid for the metal. The defendants appealed a finding that the receivers held the proceeds of sale of the manufactured goods on trust for the plaintiffs.
Held: The appeal failed. The intention of the clause was to secure for as long as possible payment of the purchase price of the aluminium. There had to be read into the contract a duty on the defendant to act under the fiduciary relationship of principal and agent, bailor and bailee, as was contemplated in the clause. The plaintiffs could trace the proceeds of the sub-sales, and recover them.

Megaw, Roskill and Goff L.JJ
[1976] 1 WLR 676
lip
England and Wales
Citing:
CitedIn re Hallett’s Estate; Knatchbull v Hallett CA 1880
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Equity, Agency

Leading Case

Updated: 01 November 2021; Ref: scu.174733

Staubitz-Schreiber (Area of Freedom, Security and Justice): ECJ 17 Jan 2006

ECJ Judicial cooperation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Temporal application – Court having jurisdiction

V. Skouris, P
Case-1/04, [2006] EUECJ C-1/04, [2006] BCC 639, [2006] ILPr 30, [2006] ECR I-701
Bailii
Council Regulation (EC) 1346/2000
Cited by:
CitedOlympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa ChD 29-May-2012
Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an . .

Lists of cited by and citing cases may be incomplete.

European, Insolvency

Leading Case

Updated: 01 November 2021; Ref: scu.565706

Post Office v Norwich Union Fire Insurance Society Ltd: CA 1967

A contract of insurance provided an indemnity for ‘all sums which the insured shall become legally liable to pay as compensation in respect of loss of property’. The claim was by the Post Office against a contractor, Potters, for damaging one of their cables which in consequence the Post Office had to repair. Before the Post Office had sued Potters, Potters went into liquidation. The Post Office sued the insurance company direct purporting to make use of the 1930 Act, but before the Post Office’s claim against Potters had been the subject of adjudication or agreement.
Held: A third party claimant could not sue the insurer directly, pursuant to the 1930 Act, until the existence and amount of the liability of the insured had been established by judgment or award or agreement. The reason for this was that the rights transferred by the Act were subject to the terms of the policy. Since the insured could not have claimed an indemnity until their liability had been established, the Post Office could be in no better position. The insurers’ argument that the Post Office had no cause of action against the insurers until the establishment of the existence and amount of the liability of the insured was therefore accepted. Though leave was necessary to begin or continue proceedings against a company in liquidation, the court considered that leave ought to be given automatically if the 1930 Act were applicable.
Lord Denning MR said: ‘It seems to me that the insured only acquires a right to sue for the money when the liability to the injured person has been established so as to give rise to a right of indemnity. His liability to the injured person must be ascertained and determined to exist, either by judgment of the court or by award in arbitration or by agreement. Until that is done the right to an indemnity does not arise.’
The liability must be ‘ascertained and determined to exist’, and that this may be achieved by judgment, arbitration award or agreement: ‘In these circumstances I think the right to sue for these moneys does not arise until the liability of the wrongdoer is established and the amount ascertained. How is this to be done? If there is an unascertained claim for damages in tort, it cannot be proved in the bankruptcy; nor in the liquidation of the company. But nevertheless the injured person can bring an action against the wrongdoer. ‘
Salmon LJ said that when the liability is established, it dates from the date when the cause of action arose: ‘The case really resolves itself into this simple question: Could Potters on June 17, 1965, have successfully sued their insurers for the sum of andpound;839 10s 3d which they were denying they were under any obligation to pay the Post Office? Stated in that way, I should have thought the question admits of only one answer. Obviously Potters could not have claimed that money from their insurers. It is quite true that if Potters in the end are shown to have been legally liable for the damage resulting from the accident to the cable, their liability in law dates from the moment when the accident occurred and the damage was suffered. But whether or not there is any legal liability and, if so, the amount due from the Potters to the Post Office can, in my view, only be finally ascertained either by agreement between Potters and the Post Office or by an action or arbitration between Potters and the Post Office. ‘

Lord Denning MR, Salmon LJ
[1967] 2 QB 363, [1967] 1 Lloyds Rep 216
Third Parties (Rights Against Insurers) Act 1930
Citing:
ApprovedWest Wake Price and Co v Ching 1957
A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word . .

Cited by:
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 . .
MentionedAer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
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 . .
AttackedBradley v Eagle Star Insurance Co Ltd HL 1989
Mrs Bradley was employed by Dart Mill several times from 1933 and 1970 and acquired byssinosis from inhaling cotton dust. The company was wound up in 1975 and dissolved in 1976. In 1984 she applied to the court for pre-action disclosure under . .
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.

Insurance, Insolvency

Leading Case

Updated: 31 October 2021; Ref: scu.198401

Radlinger and Radlingerova v Finway AS: ECJ 21 Apr 2016

Remedy for breach of consumer credit agreement

ECJ (Judgment) Reference for a preliminary ruling – Directive 93/13/EEC – Article 7 – National rules governing insolvency proceedings – Debts arising from a consumer credit agreement – Effective judicial remedy – Point 1(e) of the annex – Disproportionate amount of compensation – Directive 2008/48/EC – Article 3(l) – Total amount of credit – Point I of Annex I – Amount of drawdown – Calculation of the annual percentage rate – Article 10(2) – Obligation to provide information – Ex officio examination – Penalty

M Ilesic P
C-377/14, [2016] EUECJ C-377/14, [2016] WLR(D) 203, ECLI:EU:C:2016:283, [2016] Bus LR 886
Bailii, WLRD
Directive 93/13/EEC 7, Directive 2008/48/EC
England and Wales

European, Insolvency

Leading Case

Updated: 31 October 2021; Ref: scu.562824

Revenue and Customs v SED Essex Ltd: ChD 14 Jun 2013

Liquidator confirmed despite VAT challege

The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The decision to appoint the provisional liquidator was maintained.
The court in the Rochdale Drinks case had now modified the test for the appointment of a provisional liquidator so that: ‘ the law now is that a judge dealing with such an application should consider it in 2 stages. The first and threshold stage is to consider whether the petitioner and applicant has demonstrated that it is likely to obtain a winding-up order on the hearing of the petition. Any views the judge may express about that will of course be provisional, because the petition itself is not being tried at the time of the application. If such likelihood is not demonstrated, it would not, at least ordinarily, be right to appoint a provisional liquidator. If on the other hand it is demonstrated, and the threshold thus crossed, then the second stage is to consider whether in the circumstances of the particular case, it is – as a matter of judicial discretion – right that a provisional liquidator should be appointed (or, where as here one has already been appointed, should be maintained in office) pending the hearing of the petition.’
The Revenue had satisfied the court that ‘both:
(a) there was fraudulent evasion of VAT connected (at whatever stage) to the Company’s purchases during the relevant 12 months, and
(b) the Company, in the person of Holly Sawyer, either knew that its purchases during that period were connected with the fraudulent evasion of VAT, or should have known that the only reasonable explanation for the circumstances in which they took place was that they were so connected or ignored obvious inferences to that effect from the facts and circumstances in which the Company had been trading’ and ‘the evidence in this case does raise real questions as to the integrity of the Company’s management, and the quality of the Company’s business documentation, and accounting and record keeping functions.’ Both stages of the test were satisfied.

John Randall QC
[2013] EWHC 1583 (Ch)
Bailii
Insolvency Act 1986 122(1)(e) 123
England and Wales
Citing:
CitedRevenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
CitedRe Union Accident Insurance Co Ltd ChD 1972
A provisional liquidator cannot be appointed on a baseless petition. There are two conditions to be met. The first was that the petition must disclose a prima facie case, the second was that there were circumstances that require that a provisional . .
CitedThe Niedersachsen ChD 1983
In order to obtain, or to enlarge a freezing order, the applicant must show that in considering the evidence as a whole he has, at a minimum, a ‘good arguable case’, and also the existence of a real risk of dissipation or secretion of assets. . .
CitedMobilx Ltd and Others v HM Revenue and Customs; Blue Sphere Global Ltd v Same and similar CA 12-May-2010
Each company sought repayment of input VAT. HMRC refused, saying that the transactions were the end-product of a fraud on it, and that even if the taxpayer did not know that a fraud was involved, it should have been aware that one was and acted . .
CitedAxel Kittel v Belgian State; Belgian State v Recolta Recycling SPRL ECJ 6-Jul-2006
ECJ Sixth VAT Directive – Deduction of input tax – ‘Carousel’ fraud – Contract of sale incurably void under domestic law.
The right of a taxpayer to deduct Input Tax may be refused if: ‘it is ascertained, . .
CitedCommissioners of Customs and Excise v Anglo German Breweries Limited ChD 29-Nov-2002
The respondents appealed against imposition of assessments for the diversion of alcohol products from bonded warehouses without payment of duties. Pretence had been made of deliveries abroad, but the goods were later diverted. The company was . .
CitedThe Commissioners for Customs and Excise, The Arena Corporation Limited v The Arena Corporation Limited / Schroeder ChD 12-Dec-2003
. .
CitedCustoms and Excise v Anglo Overseas Ltd ChD 5-Oct-2004
. .
CitedIn re The Arena Corporation Limited; Commissioners for Customs and Excise v The Arena Corporation Limited; the Arena Corporation Limited v Schroeder CA 25-Mar-2004
Sir Andrew Morritt V-C said that in the context of winding up proceedings the test for whether there is a genuine triable issue in a disputed claim, is whether the debt is bona fide disputed on substantial grounds, which, for practical purposes, is . .
CitedHM Customs and Excise v Jack Baars Wholesale, Baars, and Baars CmpC 16-Jan-2004
. .
CitedRe Autotech Design Ltd, HMRC v Autotech Design Ltd ChD 2006
Michael Briggs QC summarised the approach to be adopted by the court at the hearing of for the appointment of an interim liquidator pending the hearing of an insolvency petition brought by the Revenue: ‘Although the formulations of the approach to . .
CitedRed 12 Trading Ltd v Revenue and Customs ChD 20-Oct-2009
Appeal against refusal to allow reclaim of input tax in case of alleged ‘Missing Trader Intracommunity Fraud’.
Held: Christopher Clarke J said: ‘Examining individual transactions on their merits does not, however, require them to be regarded . .
CitedPayless Cash and Carry Ltd v Patel and Others ChD 29-Jul-2011
The claimant company, in liquidation, claimed large sums from the first defendant as a director who wrongfully and fraudulently caused it to incur a liability to HMRC for wrongfully claimed input tax on various liquor purchases.
Held: Mann J . .

Lists of cited by and citing cases may be incomplete.

Insolvency, VAT, Company

Leading Case

Updated: 31 October 2021; Ref: scu.510872

Bradley-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 bankruptcy, and that therefore any other method of recovery was barred.
Held: The trustee’s argument was rejected. The property passed to the trustee ‘in the same plight and condition in which it was in the bankrupt’s hands’ and that included the right of the tenant to live there rent free until the overpaid rent had been recouped. The tenant’s rights included the right to be considered as having paid rent in advance up to the amount of the excess. A tenant’s right under the statute to deduct earlier overpayments of rent from a future rent payable by him was not an ordinary case of set-off and could continue to be exercised after the bankruptcy of the landlord.

Jenkins LJ
[1953] 1 QB 300, [1953] 1 All ER 87
Increase of Rent and Mortgage Interest (Restrictions) Act 1920 14(1)
England and Wales
Cited by:
CitedMulvey 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: . .
AppliedRegina v Secretary of State for Social Security, Ex parte Taylor and Chapman ChD 5-Feb-1996
The applicants were in turn the recipient of a Social Fund loan and a claimant who had been overpaid benefit. Both were later declared bankrupt. The Secretary of State then began to recover the loan and overpayment by deduction from their current . .
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, Landlord and Tenant

Leading Case

Updated: 31 October 2021; Ref: scu.184748

Christopher Moran Holdings Limited v Bairstow and Ruddock: ChD 1996

(Orse: Park Air Services) The tenant company went into a members’ solvent liquidation, and disclaimed the lease. At the time, the rental value had fallen very much below the contractual rent. The landlord sought to prove the balance of the rent with no allowance for being accelerated. The liquidator said the claim should be discounted for having been accelerated.
Held: The claim was correct as submitted.
Ferris J
[1996] 1 WLR 649
Insolvency Act 1986 178(2)
England and Wales
Cited by:
Appeal fromPark Air Services Plc; Christopher Moran Holdings Limited v Bairstow and Ruddock CA 1-May-1997
If a lease is determined or treated as determined in a winding up or in a bankruptcy, the landlord is entitled to prove in principle for all the rent and other payments which he would have been entitled to recover from the tenant for the residue of . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.197012

Park Air Services Plc; Christopher Moran Holdings Limited v Bairstow and Ruddock: CA 1 May 1997

If a lease is determined or treated as determined in a winding up or in a bankruptcy, the landlord is entitled to prove in principle for all the rent and other payments which he would have been entitled to recover from the tenant for the residue of the term, had the lease not been determined.
Lord Justice Nourse Lord Justice Potter And Lord Justice Mummery
[1997] EWCA Civ 1590
Insolvency Act 1986
England and Wales
Citing:
Appeal fromChristopher Moran Holdings Limited v Bairstow and Ruddock ChD 1996
(Orse: Park Air Services) The tenant company went into a members’ solvent liquidation, and disclaimed the lease. At the time, the rental value had fallen very much below the contractual rent. The landlord sought to prove the balance of the rent with . .
CitedIn re New Oriental Bank Corporation (No.2) 1895
Where a tenancy continues after the insolvency of the tenant, the landlord is entitled (i) to prove for all the arrears of rent; (ii) to enter a claim for all future rent; and (iii) as rent accrues due, to submit proofs in the liquidation from time . .
CitedRe A E Realisations Ltd 1988
Vinelott J said: ‘decisions on the Act of 1883 and on the Act of 1914 are . . of direct authority on the construction’ of the equivalent provisions for disclaimer by the liquidators of companies. . .
CitedHindcastle Ltd v Barbara Attenborough Associates Ltd and Others HL 22-Feb-1996
The guarantor of an original tenant under the lease remains liable after the disclaimer the lease on insolvency. The disclaimer operates to determine the lease altogether with the result that the landlord’s reversion is accelerated. ‘In order to . .
CitedIn re London and Colonial Co.; Horsey’s claim 1868
. .
CitedGooch v London Banking Association ChD 1886
On the application of a landlord, the court had jurisdiction to restrain the liquidators of a solvent company in voluntary liquidation from distributing assets of the company amongst its shareholders, without setting aside sufficient assets to . .
CitedRe Panther Lead Company 1896
There was no surrender of a lease to the landlord and the tenant’s liquidator did not have the power to disclaim the lease. In the voluntary winding up of an insolvent company the landlord sought to prove for the liabilities of the company under the . .
CitedEx parte Llynvi Coal and Iron Co; In re Hide 1871
The trustee in bankruptcy disclaimed an agreement for a lease under Section 23. The landlord claimed to prove as creditor under the section.
Held: Where one party has repudiated a contract and the other party has accepted that repudiation as . .

Cited by:
Appeal fromIn Re Park Air Services Plc; Christopher Moran Holdings Ltd v Bairstow and Another HL 4-Feb-1999
The tenant company went into liquidation, the receiver disclaimed the lease, and the landlord claimed compensation under the Act. The question concerned how the compensation was to be calculated.
Held: Where a solvent tenant under an onerous . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.141986

Re Mineral Resources Limited; Environment Agency v Stout (Chd; Apr 1998): ChD 24 Jun 1998

A waste management licence was property, but public policy required that such licences should not be disclaimable by liquidators. There is a need to preserve responsibilities of those taking such licences.
Gazette 24-Jun-1998
Environmental Protection Act 1990, Insolvency Act 1986 178
England and Wales

Updated: 01 October 2021; Ref: scu.85837

Re: New Bullas Trading Ltd: ChD 5 Apr 1993

A fixed charge in a debenture without restrictions on dealing with monies received must be a floating charge.
Knox J
Ind Summary 05-Apr-1993, [1993] BCC 251
Insolvency Act 1986 40
England and Wales
Citing:
Appealed toIn Re New Bullas Trading Ltd CA 12-Jan-1994
A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be . .
AppliedIn re Brightlife Ltd ChD 1987
Parties contractual freedom to be respected
A clause in a debenture gave a charge which provided that the chargor should not: ‘deal with its book or other debts or securities for money otherwise than in the ordinary course of getting in and realising the same which expression shall not . .

Cited by:
Appeal fromIn Re New Bullas Trading Ltd CA 12-Jan-1994
A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be . .
CitedNational Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85909

Re Dennis: ChD 15 Jul 1992

Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not operate as an involuntary act to sever the joint tenancy and the bankrupt inherited the jointly held property. On his bankruptcy the entire property was then vested in the trustee and was available to the creditors. ‘the effect of section 38(a) is not to vest title in the trustee retrospectively in the sense that under the Act he is deemed to have had title at the commencement of the bankruptcy: the effect of Section 38(a) is to vest in the trustee, when adjudication occurs, title to property which is identified by reference to the property which belonged to the bankrupt at the commencement of the bankruptcy. The consequence of this may be, and in some cases will be, to divest a third party of title to property which since the commencement of the bankruptcy he has acquired from the bankrupt. That divesting occurs when the adjudication order is made, not before.’
Browne-Wilkinson J
Gazette 15-Jul-1992, [1993] Ch 72
Bankruptcy Act 1914 18 37 38A
England and Wales
Citing:
Appealed toRe Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .

Cited by:
Appeal fromRe Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Not followedIn Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85751

West Mercia Safetywear Ltd v Dodds: CA 1988

If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of insolvency, even a written consent will not totally safeguard against a claim from a liquidator.
Dillon LJ, Croom-Johnson LJ and Caulfield J
[1988] BCLC 250, [1988] BCC 30
England and Wales
Citing:
ApprovedKinsela v Russell Kinsela Pty Ltd (In Liq) 1986
(New South Wales) If directors act in a way to promote their own interest or promote the private interest of others, they have not acted in the best interests of the company.
Street CJ said: ‘In a solvent company the proprietary interests of . .

Cited by:
CitedThe Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
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 . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.188615

BPE 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 the action, but lost, he would not become personally liable for the costs in the lower courts.
Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKSC 39, [2015] 4 Costs LO 467, [2015] WLR(D) 259, [2015] AC 1663, [2015] 4 All ER 672, [2015] BPIR 779, [2015] 3 WLR 1, UKSC 2014/0026
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
Constitutional Reform Act 2005 40(5), upreme Court Rules 2009 46
England and Wales
Citing:
Appeal fromGabriel v Little and Others CA 22-Nov-2013
The claimant sought repayment of sums loaned to the defendant by them under a facility letter supported by a legal charge. The charge had been enforced but the sums realised had been insufficient. . .
CitedBorneman 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 . .
CitedSchool Board for London v Wall Brothers CA 1891
. .
CitedHeath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .
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 . .
CitedIn 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 . .
CitedIn re A Debtor (No 68 of 1911) 1911
. .
CitedIn re Pitchford 11-Jan-1924
. .
CitedAiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
CitedGlenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
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 . .

Cited by:
CitedPlevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.549064

Harvey v Dunbar Assets Plc: CA 13 Feb 2017

This appeal raises an issue of principle in the law of bankruptcy on which there is no previous authority directly in point. If:
(a) a debtor’s application to set aside a statutory demand (‘SD1’) is dismissed on the merits, by application of the familiar test that the debtor has no reasonable prospect of establishing a defence or cross claim which would either extinguish the debt or reduce it below the minimum bankruptcy level of andpound;750; but
(b) SD1 is subsequently set aside on appeal, on an unrelated ground;
(c) the unrelated ground is then disposed of in the creditor’s favour, in other proceedings to which the debtor is not a party; and
(d) the creditor then serves a second statutory demand (‘SD2’) on the debtor, relying on precisely the same debt as he did when he served SD1:
Is it open to the debtor to apply to set aside SD2 on the same grounds which he unsuccessfully raised in opposition to SD1, and which he never sought to uphold on the appeal from SD1?
Held: The debtor’s appeal failed. He could show no proper prospect of defending the claim under the guarantee he had signed.
The court set out the principles of promissory estoppel: ‘Where, by his words or conduct one party to a transaction, (A) freely makes to the other (B) a clear and unequivocal promise or assurance that he or she will not enforce his or her strict legal rights, and that promise or assurance is intended to affect the legal relations between them (whether contractual or otherwise) or was reasonably understood by B to have that effect, and, before it is withdrawn, B acts upon it, altering his or her position so that it would be inequitable to permit the first party to withdraw the promise, the party making the promise or assurance will not be permitted to act inconsistently with it. B must also show that the promise was intended to be binding in the sense that (judged on an objective basis) it was intended to affect the legal relationships between the parties and A either knew or could have reasonably foreseen that B would act on it. Yet B’s conduct need not derive its origins solely from A’s encouragement or representation. The principal issue is whether A’s representation had a sufficiently material influence on B’s conduct to make it inequitable for A to depart from it.’
Gross, Henderson LJJ, Sir Stephen Tomlinson
[2017] EWCA Civ 60
Bailii
England and Wales
Citing:
CitedBarnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Appeal fromHarvey v Dunbar Assets Plc ChD 26-Nov-2015
Renewed application by Mr Harvey for permission to appeal the dismissal of his application to set aside a statutory demand served on him by the respondent, Dunbar Assets plc . .

Cited by:
CitedJones and Another v Lydon and Others ChD 23-Aug-2021
No Estoppels Established to Override Majority
The parties were former members of a band, the Sex Pistols. They disputed the continued duty to accept the decision of the majority of its members as set out in a Band Membership Agreement. Mr Lydon asserted that over the years the obligation had . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.574296

Secretary of State for Trade and Industry v Blackhouse: CA 26 Jan 2001

In Re North West Holdings PLC and Another
A non-party costs order was made against the director, because the defence to the petitions was not conducted in the bona fide belief that it was in the interests of the companies. Instead the director, who had treated the companies’ money as his own, defended the petitions to protect his personal reputation and position, without regard to the interests of the companies or its creditors.
Held: The appeal against that order was dismissed.
Aldous LJ said: ‘A crucial question is whether the relevant directors (or director) hold a bona fide belief that (i) the company has an arguable defence, and (ii) it is in the interests of the company for it to advance that defence. If they do then, (in the absence of special circumstances) to make them pay costs of proceedings in which they are not a party would constitute an unlawful inroad into the principle of limited liability . . ‘
Aldous LJ
[2001] EWCA Civ 67, [2001] 1 BCLC 468, [2002] BCC 441
Bailii
England and Wales
Cited by:
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 . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.200767

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.’
Millet LJ
Times 12-Dec-1996, [1997] 1 WLR 1613, [1996] EWCA Civ 670, [1996] EWCA Civ 671, [1997] BCC 165, [1998] 1 Costs LR 85
Bailii, Bailii
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 . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.83673

Hunt and Another v Conwy County Borough Council: ChD 8 May 2013

The claimant bankrupt and his mother sought a vesting order under the 1986 Act in respect of the pier at Colwyn Bay and its associated dwelling which had been disclaimed by the trustee as onerous property.
Held: The court had power to hear an application under the section for the vesting a dwelling in its occupants even though that he might occupy only a part of the disclaimed property as his dwelling house and on such an application, it could make an order relating to only a part of the disclaimed property.
Sir William Blackburne
[2013] EWHC 1154 (Ch), [2014] 1 WLR 254, [2013] WLR(D) 205, [2013] BPIR 790
Bailii, WLRD
Insolvency Act 1986 320(2)(a)
England and Wales

Updated: 29 June 2021; Ref: scu.503477

Re Yagerphone Ltd: 1935

A sum recovered from a creditor who has been wrongly preferred enures for the benefit of the general body of creditors, not for the benefit of the company or the holder of the floating charge. It does not become part of the company’s assets but is received by the liquidator impressed with a trust in favour of those creditors amongst whom he has to distribute the assets of the company.
[1935] Ch 392
England and Wales

Updated: 21 June 2021; Ref: scu.196015

Re Dennis (A Bankrupt): CA 22 May 1995

A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; the trustee had no choice in the matter. ‘the debtor’s interest in the property was divested on the commission of the act of bankruptcy, in which event the joint tenancy was severed.’ ‘It was a peculiarity of the former law of bankruptcy that the effect of an act of bankruptcy on a joint tenancy depended on whether it was followed by adjudication or not. But it did not depend on whether it was the solvent or the insolvent joint tenant who died before adjudication.’
Ind Summary 22-May-1995, [1995] 3 All ER 171, [1995] 3 WLR 367
Bankruptcy Act 1914 37
England and Wales
Citing:
CitedCooper v Chitty 1756
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December . .
Appeal fromRe Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .
CitedFox v Hanbury 1776
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission . .
CitedFraser v Kershaw 1856
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other. . .
DisapprovedEx parte Smith 1800
Two partners, Strickland and Richardson, held property as joint tenants at law. Richardson committed an act of bankruptcy by absenting himself, and a commission was issued against him. The commissioners then declared Richardson bankrupt and executed . .
CitedSmith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
CitedDoe d Lloyd v Powell 1826
A lessee executed a deed by which he conveyed all his real and personal property to trustees for the benefit of his creditors. This was an act of bankruptcy. A commission was issued against him and he was declared bankrupt. He then sought to forfeit . .
CitedMorgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
CitedRe Bonham ex parte the Postmaster-General 1879
A bankrupt presented his own petition. It was contended that the relation back of the title of the assignees in bankruptcy to the anterior act of bankruptcy did not affect the rights of the Crown was altered by the 1869 Act
Held: The Act made . .
CitedTitterton v Cooper CA 1882
The bankrupt was a lessee. His trustee did not disclaim the lease, and the question was whether he was personally liable for the rent which had fallen due between the date of his appointment and the date on which he elected not to disclaim.
CitedRe Lewis ex parte Helder CA 1883
An agent, in obedience to a previous instruction of his principal, paid away money of the principal which was in his hands knowing, before he made the payment, that when completed it would constitute an act of bankruptcy on the part of his . .
CitedRe Chapman ex parte Edwards CA 1884
The solicitor for the petitioning creditor was liable to account to the trustee for money which he had received from the debtor after he (necessarily) had notice of the act of bankruptcy on which the petition was founded and which he had paid to his . .
CitedRe Badham ex parte Palmer 1893
The debtor made payments to creditors after the bankruptcy petition had been presented, and after the act of bankruptcy. After the debtor had been adjudicated bankrupt the trustee in bankruptcy sought to recover the payments as fraudulent . .
CitedRe Pollitt CA 1893
The debtor had put his solicitor in funds to meet future costs. The solicitor then prepared a deed of assignment for the benefit of the creditors which the debtor executed. The debtor was afterwards adjudicated bankrupt, the act of bankruptcy being . .
CitedRe Hirth CA 1899
The debtor, already in financial difficulties, transferred his business to a limited company which he had formed for the purpose. Within three months he committed an act of bankruptcy by failing to comply with a bankruptcy notice. He was adjudicated . .
CitedMontefiore v Guedalla 1901
The bankrupt had a protected life interest in a trust fund under the will of his late father which was defeasible inter alia if he should do or omit to do or should suffer to be done any act whereby the income of the trust fund if payable to himself . .
CitedStein v Pope CA 1902
A lessee assigned the lease by an assignment which constituted an act of bankruptcy. He was subsequently adjudicated bankrupt and his trustee disclaimed the lease. During the interval between the assignment of the lease and the date of the . .
CitedRe Gunsbourg CA 1920
The debtor transferred his assets to a company formed by him. He later committed an act of bankruptcy on which he was adjudicated bankrupt. The company had sold some of the assets to a bona fide purchaser without notice of the act of bankruptcy. The . .
CitedPonsford, Baker and Co v Union of London and Smith’s Bank CA 1906
Was a debtor who had committed an act of bankruptcy but who had not yet been adjudicated bankrupt free to require his secured creditor, who had notice of it, to hand over his securities on payment of the amount due thereon?
Held: He could not. . .
CitedRe Gershon and Levy 1915
An order was made by consent in a partnership action to tax the costs of the parties and the receiver was ordered to pay the costs when taxed out to the solicitors for the parties out of the partnership assets. When the order was made all parties . .
CitedRe Ashwell ex parte Salaman Chd 1912
After the presentation of a bankruptcy petition against him, the debtor obtained an adjournment of the petition by paying the petitioning creditors money which he falsely represented to be that of a third party. The debtor was afterwards adjudicated . .
CitedIn Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .

Cited by:
Appealed toRe Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.85752

Cadogan Estates Ltd v McMahon: CA 9 Jun 1999

A provision in a tenancy agreement that the tenancy would cease upon the bankruptcy of the tenant, continued and became part of the terms of a statutory tenancy following the contractual one. The provision was not inconsistent with the idea of the statutory tenancy, and the term was implied into the statutory tenancy.
Stuart-Smith and Laws L.JJ. and Jonathan Parker J.)
Times 01-Jun-1999, Gazette 03-Jun-1999, Gazette 09-Jun-1999, [1999] EWCA Civ 1470, [1999] 1 WLR 1689, [1999] L and TR 481
Bailii
Rent Act 1977 98(1)
England and Wales
Cited by:
Appeal fromCadogan Estates Limited v McMahon HL 26-Oct-2000
When a tenancy was terminated and was followed by a statutory tenancy, a term in the contractual tenancy that the tenancy should be forfeit on the tenant’s bankruptcy was continued in and inherited by the statutory tenancy. Though perhaps in . .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.78822

Rowe v Glenister and Others: CA 7 Aug 1995

Mrs. Rowe sued Mr. Glenister for breach of trust. The judge struck out the action for the want of prosecution.
Held: A witness’s memory loss is not itself a sufficient reason to strike out an action for want of prosecution. A defendant seeking a striking out for delay must also show some post-writ prejudice caused by the delay.
Times 07-Aug-1995, Ind Summary 11-Sep-1995
England and Wales
Cited by:
See AlsoGlenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.88878

In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland: CA 1989

A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice Nicholls said: ‘The question arising on this appeal concerns the exercise by the court of its power to set aside a statutory demand ‘on other grounds’ within sub-paragraph (d) [of rule 6.5(4)] In my view, the right approach to paragraph (4) of rule 6.5 is this. Under the Act, a statutory demand which is not complied with founds the consequence that the debtor is regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1), in the absence of an unsatisfied return to execution or other process, a debtor’s inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with. When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.’
and ‘When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.
This approach to sub-paragraph (d) is in line with the particular grounds specified in sub-paragraphs (a) to (c) of rule 6.5(4). Normally it would be unjust that an individual should be regarded as unable to pay a debt if the debt is disputed on substantial grounds: sub-paragraph (b). Likewise, if the debtor has a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt: sub-paragraph (a). Again, if the creditor is fully secured: sub-paragraph (c).’

and ‘Nevertheless, applying the approach which I have indicated above as the correct approach to these statutory provisions, in my view it by no means follows from the existence of these defects that this statutory demand ought to be set aside. The court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. That must require a court to have regard to all the circumstances as they are at the time of the hearing before the court. There may be cases where the terms of the statutory demand are so confusing or so misleading that, having regard to all the circumstances, justice requires that the demand should not be allowed to stand. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone.’ and
‘In these circumstances I am in no doubt that, despite the mistakes in this statutory demand and the use strictly of the incorrect form, and despite the debtor not being aware of the precise amount of the debt when the demand was served on him, justice does not require that this statutory demand should be set aside. I can see no injustice in the consequences which flow from non-compliance with a statutory demand being permitted to flow in this case, despite the existence of those features.’
Lord Justice Nicholls
[1989] 1 WLR 271, [1989] 2 All ER 46
Insolvency Rules 1986 (1986 No 1925) 6.1 6.5(4)(d), Police Act 1996 2
England and Wales
Cited by:
CitedCoulter 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.
CitedTS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
CitedRemblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
CitedBudge v AH Budge (Contractors) Ltd CA 1997
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why . .
CitedWhite v Davenham Trust Ltd ChD 1-Nov-2010
. .
CitedMahon and Another v FBN Bank (UK) Ltd ChD 6-Jun-2011
The claimants appealed against a refusal to set aside a statutory demand. . .
CitedWhite v Davenham Trust Ltd CA 28-Jun-2011
Appeal against order reinstating statutory demand. . .
CitedMoore (T/A James Moore Earth Moving) v Inland Revenue ChNI 5-Dec-2001
Appeal against conditional setting aside of statutory demand. . .
CitedOwo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
CitedShaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
CitedAllen v Burke Construction Ltd ChNI 25-May-2010
. .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.220020

In re British and Commonwealth Holdings plc (Nos 1 and 2): HL 1993

Section 236 extended the power of a liquidator to require from the company’s officers all the documents he would reasonably need in order to fulfil his duties under the Act.
Lord Slynn said: ‘The protection for the person called upon to produce documents lies, thus, not in a limitation by category of documents (‘reconstituting the company’s state of knowledge’) but in the fact that the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. A proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirement. An application is not necessarily unreasonable because it is inconvenient for the addressee of the application or causes him a lot of work or may make him vulnerable to future claims or is addressed to a person who is not an officer or employee of or a contractor with the company in administration, but all these will be relevant factors, together no doubt with many others.’
and: ‘the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. The proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirements.’
Lord Slynn
[1993] AC 426, [1992] 4 All ER 876, [1992] 3 WLR 853
Insolvency Act 1986 236
England and Wales
Cited by:
CitedOfficial Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
CitedGreen v BDO Stoy Hayward LLP ChD 2-Nov-2005
The liquidator sought production of the company’s books and documents held by the defendant as former auditors of the company.
Held: The power to order discovery could be more freely exercised against an officer of a company than against a . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.186362

Re Hurren (a bankrupt): ChD 1983

There might have been a surplus after paying the debts due to the Inland Revenue (the major creditor).
Held: The way forward was for the trustee to agree the tax liability with the Revenue but only with the consent of the bankrupt. Walton J said: ‘So in substance it is really a question between the bankrupt and the Revenue with the trustee holding a watching brief to see that neither of them makes any fatal errors.’
Walton J
[1983] 1 WLR 183
England and Wales
Cited by:
CitedSingh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.564437

Re a Debtor, ex parte the Debtor v Dodwell: ChD 1949

Harman J held that it was for the bankrupt’s trustee alone to settle with the Crown in a case where the bankrupt had been discharged and there was no tax assessment.
Harman J
[1949] Ch 236
England and Wales
Cited by:
CitedSingh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.564436

Whig v Whig: FD 23 Jul 2007

The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy.
Munby J
[2007] EWHC 1856 (Fam), [2008] 1 FLR 453
Bailii
England and Wales
Cited by:
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.260013

HM Revenue and Customs v Begum and Others: ChD 15 Jul 2010

The Commissioners claim was founded in an alleged conspiracy from a ‘missing trader intra-community fraud’ amounting to andpound;96 million.
Held: Section 423 had extra territorial effect.
David Richards J
[2010] EWHC 1799 (Ch), [2011] BPIR 59
Bailii
Insolvency Act 1986 423
England and Wales
Citing:
CitedRegalway Care Ltd v Shillingford and others ChD 25-Feb-2005
Applications to vary freezing order. Blackburne J set out a description of the workings of missing trader intra-community VAT carousel frauds. . .

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 . .

These lists may be incomplete.
Updated: 20 May 2021; Ref: scu.420810

Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased): ChD 12 Nov 2008

The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the estate to his trustee.
Held: The value of the estate was payable to the trustee in bankruptcy. Once the right vested in the trustee, it could not revert to the bankrupt on release. ‘ the Trustee has never had any proprietary interest in Mrs. Hemming’s half-share of the cottage, or in the proceeds of sale of that specific property. Accordingly, if and to the extent that the Trustee asserted any present entitlement to the proceeds of sale in the hands of Raymond Saul and Co., that claim was unjustified. ‘
Richard Snowden, QC
[2008] EWHC 2731 (Ch), Times 09-Dec-2008, [2008] WTLR 1833, [2008] NPC 122, [2009] 2 WLR 1257, [2009] Ch 313
Bailii
Insolvency Act 1986 283(1) 306(1) 436
England and Wales
Citing:
CitedSudeley v Attorney-General HL 1897
The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked . .
CitedDr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts HL 14-Mar-1921
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The . .
CitedCommissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
CitedMarshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .

Cited by:
Principal judgmentRaymond Saul and Co (A Firm) v Holden and Another ChD 16-Dec-2008
. .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.277939

In Re Devon and Somerset Farmers Ltd: ChD 25 May 1993

An Industrial and Provident Societies Act society is unregistered and is therefore not a company for the purposes of s40. Had that been intended express statutory provision would have been made.
Hague QC J
Times 25-May-1993, Gazette 01-Sep-1993, [1993] BCC 410
Insolvency Act 1986 40 251, Industrial and Provident Societies Act 1965, Companies Act 1985 735
England and Wales
Citing:
DistinguishedIn Re International Bulk Commodities Ltd ChD 26-Aug-1992
Company receivers in insolvency can include unregistered companies. . .

These lists may be incomplete.
Updated: 14 May 2021; Ref: scu.81846

In Re Continental Assurance Company of London Plc (In Liquidation) (2): ChD 14 Jan 1999

The rules are intended to provide a comprehensive and unitary scheme of management of company liquidations, and in voluntary liquidation, the date of the resolution commencing the dissolution is to be used as the date of the winding up order.
Gazette 10-Feb-1999, Times 14-Jan-1999
Insurance Companies (Winding Up) Rules 1985 95 L2
England and Wales

Updated: 14 May 2021; Ref: scu.81817

In Re Land and Property Trust Co Plc (No 2): CA 16 Feb 1993

The judge was wrong to refuse an adjournment when he had insufficient evidence before him properly to make his decision, and when a costs order was sought against the company directors personally in respect of an application for the winding up of a company. The directors had not been party to the early part of the proceedings and when told of the application for costs requested the opportunity to adjourn so that they could prepare a case.
Times 16-Feb-1993
England and Wales

Updated: 11 May 2021; Ref: scu.81996

LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others: SC 17 May 2017

In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The Court considered the so called waterfall of distributions made on liquidation which proved to be in surplus as set out in Nortel.
It was not be open to LBHI2 to lodge a proof in respect of the subordinated debt until the non-provable liabilities have been paid in full, it was clear that, after meeting that proof in full and paying any statutory interest due on it, the non-provable liabilities could be met in full. As soon as that has happened, there would, subject to what I say in the next paragraph, be nothing to stop LBHI2 lodging a late proof: ‘On the face of it at any rate, it seems a little strange that a proof can be, or has to be, lodged for a debt which ranks after statutory interest (which can only be paid out of a ‘surplus’) and non-provable liabilities. It may be that the proper analysis is that the subordinated debt is a non-provable debt which ranks after all other non-provable liabilities.’
Based the narrower or primary contention raised by the LBHI2 administrators, it is not open to the foreign currency creditors to seek to claim as a non-provable debt, the difference between the sterling value of the debt at the administration date and the sterling value of that debt when paid, where the latter exceeds the former.
The contractual right (in this case to recover interest and in the case of currency conversion claims, to be paid at a particular rate of exchange) has been replaced by legislative rules. On that basis, there is no room for the contractual right to revive just because those rules contain a casus omissus or because they result in a worse outcome for a creditor than he would have enjoyed under the contract.
Section 74 can be relied on to meet non-provable liabilities but not statutory interest: ‘I would allow the LBHI2 administrators’ appeal on the issue whether section 74 can be invoked in order to pay statutory interest, but I would dismiss their appeal on the issue whether that section can be invoked in order to meet other non-provable liabilities. I would therefore allow the appeal in part against para (vi) of David Richards J’s order.’
Lord Neuberger, President, Lord Kerr, Lord Clarke, Lord Sumption, Lord Reed
[2017] UKSC 38, [2017] 2 BCLC 149, [2017] 2 WLR 1497, [2017] BCC 235, [2018] AC 465, UKSC 2015/0138
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video
Insolvency Act 1986, Insolvency Rules 1986
England and Wales
Citing:
At ChDRe Lehman Brothers International (Europe) and Others ChD 14-Mar-2014
On the winding up of the company, there had unexpectedly been a surplus of assets after payment of all debts. The court was now asked to determine claims to be allowed before a distribution was made.
Held: The court made declarations as . .
At CALB Holdings Intermediate 2 Ltd, (The Joint Administrators of) and Others v Lomas and Others CA 14-May-2015
Applications after recovery of surplus funds to repay creditors of Lehmann Brothers Ltd. The court had given orders as to the several uses of the surpluses. The parties appealed some elements of those orders.
Held: Most elements were upheld, . .
CitedCherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .
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 . .
CitedIn re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
CitedBloom and Others v The Pensions Regulator (Nortel, Re) ChD 10-Dec-2010
Applications for directions by the administrators of twenty companies in two groups, all raising the same common questions as to the effect of the Financial Support Direction regime created by the Pensions Act 2004 upon companies in administration . .
CitedBelmont 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 . .
CitedGooch v London Banking Association ChD 1886
On the application of a landlord, the court had jurisdiction to restrain the liquidators of a solvent company in voluntary liquidation from distributing assets of the company amongst its shareholders, without setting aside sufficient assets to . .
CitedIn re Fine Industrial Commodities Ltd ChD 1956
The Court considered the payment of interest to simple contract creditors. The company had been wound up on the ground of insolvency. In the course of the winding up the liquidators brought an action to set aside a debenture. The action was . .
CitedMitchell v Carter, In re Buckingham International Ltd CA 1977
The making of a winding-up order ‘divests the company of the beneficial ownership of its assets’, and those assets become ‘subject to a statutory scheme for distribution among the creditors and members’, who have the right to have them administered . .
CitedIn re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
CitedHIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
CitedIn re Islington Metal and Plating Works Ltd ChD 1983
Section 30 of the 1914 Act provided that ‘demands in the nature of unliquidated damages … shall not be provable in bankruptcy’. Tort claims were therefore excluded as provable debts by the express wording of the Act. . .
CitedIn Re Buckingham International Plc ChD 20-Nov-1997
There is no power in the court to make any arrangement which will result in the preference of one set of creditors over others of the same class. . .
CitedIn re Lines Bros Ltd CA 1982
The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the . .
CitedIn re Humber Ironworks and Shipbuilding Co 1869
The assets of a company held on the statutory trusts should be distributed as if they had all been collected and distributed on the date of the winding up order: ‘I think the tree must lie as it falls; that it must be ascertained what are the debts . .
CitedEx parte Mackay; Ex parte Brown; In re Jeavons 1873
Mr Jeavons sold a patent regarding the manufacture of armour plates to a Brown and Co and Cammell and Co in consideration of the companies paying royalties. There was also a loan from the company to Mr Jeavons secured on the royalties. The parties . .
CitedIn re Pyle Works CA 1890
The court was asked about a mortgage of the uncalled amounts on some partly paid shares and all the present and future property of the company. The issue was whether the mortgages extended to the calls to be made by the liquidator in the winding up . .
CitedParmalat Capital Finance Ltd and others v Food Holdings Ltd and Another PC 9-Apr-2008
(the Cayman Islands) Lord Hoffmann said that ‘a winding up order does not affect the legal rights of the creditors or the company’. . .
CitedFinancial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd CA 29-Nov-2005
The claimant investors said that their financial adviser, the defendant insolvent company, had given them negligent advice. The action was brought as a preliminary to claiming against the defendant’s insurers under the 1930 Act, in the way made . .
CitedBarclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
CitedWight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
CitedInco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
CitedMiliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
CitedInco Europe Ltd and Others v First Choice Distribution (A Firm) and Others CA 10-Sep-1998
The Court of Appeal has jurisdiction to hear an appeal against a judge’s grant or refusal of an order staying court proceedings where arbitration was sought by one party under an agreement. . .
CitedIn re Dynamics Corporation of America ChD 1976
In a compulsory winding up of an insolvent company, a creditor’s claim for a debt in a foreign currency, and any set-off in a foreign currency against such a debt, must be converted into sterling as at the date of the winding up order. The result . .
CitedBeaufort Developments (NI) Limited v Gilbert-Ash NI Limited and Others HL 26-Feb-1998
The contractual ability given to an arbitrator under standard JCT terms did not oust the court from assessing and prejudging the acts of the architect under a building contract. As to the means for interpreting documents, Lord Hoffmann said: ‘I . .
CitedIn re Whitehouse and Co CA 1878
The Court was asked whether a contributory was entitled to set off a debt due to him from the company against calls made against him both by the company before the commencement of its liquidation and by the liquidator after the commencement of its . .
CitedWhittaker v Kershaw CA 1890
A company contributory has no liability until the company concerned is wound up. . .
CitedIn re MC Bacon Ltd (No2) ChD 1991
A claim was made by the liquidator for reimbursement, out of a fund in the hands of a secured creditor, of costs, which included costs the liquidator had been ordered to pay the secured creditor following the dismissal of the action in which he . .
CitedIn re Ayala Holdings Ltd (No 2) ChD 1996
The Court was asked as to an assignment to a creditor of all rights to and choses in action relating to or in any way arising out of or in connection with an action against a secured creditor. The rights purportedly assigned included the right to . .
CitedBank of Credit and Commerce International Sa (In Liquidation) (No 8) CA 2-Oct-1996
Not all debts which were eligible for proof in bankruptcy were also eligible for a set off.
Rose Ljexplained the doctrine of equitable marshallling, saying: ‘The doctrine of marshalling applies where there are two creditors of the same debtor, . .
CitedGye v McIntyre 1-Mar-1991
High Court of Australia – Bankruptcy – Proof of debts – Set-off – Mutual dealings – Composition with creditors – Person claiming to prove debt . .
CitedGraham and Others, Assignees of Leigh, Bankrupt v Russell 25-Nov-1816
An underwriter, in an action by the assignees of a bankrupt assured, upon a loss which happened after the bankruptcy, may set off a sum due to him for premiums on the balance of accounts between the bankrupt and himself. . .
CitedForster v Wilson 1843
English law regards insolvency set off as a way of achieving substantial justice between the parties. . .
CitedStein 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 . .
CitedCherry v Boultbee CA 6-Apr-1838
TB was indebted to CB, his sister, in the sum of andpound;1878. He became bankrupt, and shortly after his bankruptcy C B made her will, giving legacies of andpound;500 and andpound;2,000 to her executors, in trust to pay the interest thereof (as to . .
CitedCherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .
CitedIn re Overend Gurney and Co (Grissell’s case) 1866
On the insolvency of a company, no cross claim may be set off against the company member’s liability for unpaid capital, for debt. Lord Cheldmsford LC said: ‘If the amount of an unpaid call cannot be satisfied by a set-off of an equivalent portion . .
CitedOakes v Turquand hL 1867
Lord Chelmsford said: ‘it is said that everything that is stated in the prospectus is literally true, and so it is; but the objection to it is, not that it does not state the truth as far as it goes, but that it conceals most material facts with . .
CitedCambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
CitedIn re Abrahams ChD 1908
A debt was owed by the beneficiary to the estate which was payable by way of future instalments which were not due.
Held: The debt did not entitle the executors to hold back distribution of the beneficiary’s share of the estate. . .

Cited by:
CitedMT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.584116

Levy v Legal Aid Board: ChD 24 Feb 2000

Although an order for costs might in some circumstances not be provable in an insolvency, that did not prevent a statutory demand based upon that debt. Whether it was provable would become clear in the later insolvency proceedings. The court had a discretion to found a petition on an unproveable debt where there were special circumstances such as, for example other debts which were provable.
Gazette 24-Feb-2000, Gazette 16-Mar-2000
Insolvency Rules 1986/1925 12 3 (2) (a)
England and Wales

Updated: 08 May 2021; Ref: scu.83037

Smith (a bankrupt) v Braintree District Council: HL 1989

The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
Lord Jauncey of Tullichettle said that, in view of the changes in policy shown by the new Act, he felt justified in construing the provision of the Act of 1986 ‘as a piece of new legislation without regard to 19th century authorities or similar provisions of repealed Bankruptcy Acts.’
Lord Jauncey of Tullichettle
[1989] 3 All ER 897, [1989] 3 WLR 1317, [1990] 2 AC 215
Bankruptcy Act 1986
England and Wales
Cited by:
CitedBristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
CitedHarlow District Council v Hall CA 28-Feb-2006
The defendant had been subject to a possession order in respect of his secure tenancy. He was later adjudged bankrupt. He asserted that the bankruptcy specifically prevented other action to enforce the debt, and the suspended possession order was . .
CitedPoulton v Ministry of Justice CA 22-Apr-2010
The claimant was trustee in bankruptcy but the court failed to register the bankruptcy petition at the Land Registry as a pending action. The bankrupt was therefore able to sell her land, and the trustee did not recover the proceeds. The trustee . .
CitedIn re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
CitedMcRoberts v McRoberts ChD 1-Nov-2012
The parties had agreed to an ancillary relief order on their divorce. The husband was made bankrupt without having paid the lump sum agreed. The former wife and now claimant had received no dividend. Debts which were not provable in the bankruptcy . .
CitedSingh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.181067

Trustees of Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa: CA 25 Feb 2013

Application for security for costs of appeal agaiinst winding up order.
Kitchin LJ
[2013] EWCA Civ 218
Bailii
England and Wales
Cited by:
Security for costsOlympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .

These lists may be incomplete.
Updated: 01 May 2021; Ref: scu.472024

Raithatha v Williamson: ChD 4 Apr 2012

A bankrupt’s present entitlement to compel payment of pension benefits fell to be included in the assessment of his income within the meaning of section 310(7) of the Insolvency Act.
Bernard Livesey QC
[2012] EWHC 909 (Ch), [2012] 1 WLR 3559, [2012] BPIR 621, [2012] WLR(D) 115, [2012] 3 All ER 1028
Bailii
Insolvency Act 1986 310
England and Wales
Cited by:
Not followedHorton v Henry ChD 17-Dec-2014
The trustee in bankruptcy sought to oblige the bankrupt to make a capital draw on pension fund assets in order to support an Income Payment Order.
Held: The judge dismissed the application for an IPO. The court had no power under section 310 . .
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 . .

These lists may be incomplete.
Updated: 28 April 2021; Ref: scu.470135