Tag: Insolvency

AIB Capital Markets Plc and Another v Atlantic Computer Systems Plc and others; in re Atlantic Computers: CA 25 Jul 1990

The court was asked how the administrators should deal with third parties seeking to exercise existing proprietary rights (including security rights) against the company in administration, and gave guidance. Nicholls LJ noted that in some cases there would be a dispute over the existence, validity or nature of the security which the third party was seeking to enforce. In that context, it was not for the court (on the application for permission to lift the moratorium) to seek to adjudicate upon that issue ‘unless . . the issue raises a short point of law’. Otherwise (i.e. wherever the issue about the validity or nature of the security did not raise a short point of law) the Court would need to be satisfied only that the applicant for permission to enforce the proprietary right had a seriously arguable case.

Judges:

Neill, Staughton, Nicholls LJJ

Citations:

[1990] EWCA Civ 20, [1992] Ch 505, [1990] BCC 859, [1992] 2 WLR 367

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – McCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration) ChD 22-Apr-2010
The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 19 July 2022; Ref: scu.276299

In Re Maxwell Fleet and Facilities Management Ltd: ChD 10 Feb 2000

Although regulation 4 went beyond the obligations imposed by the Directive, it was intended to protect employee rights who were employed by companies which were hived down. In this case the sale of the business to a subsidiary and then onto a third party was to be treated as one transaction, and the regulations applied.

Citations:

Gazette 10-Feb-2000, Times 23-Feb-2000

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

Jurisdiction:

England and Wales

Insolvency, Employment, Company

Updated: 19 July 2022; Ref: scu.82050

In Re Insolvency Act 1986; Cork v Rawlins: ChD 27 Jun 2000

The proceeds of a permanent disability benefit insurance policy were not calculated according to the pain and suffering of the bankrupt, and were therefore distributable amongst his creditors. There was no part of it held on constructive trust for the bankrupt by the insurance company. The sums were distributable even though a decision as to the claim was made only after the discharge.

Citations:

Gazette 06-Jul-2000, Times 27-Jun-2000

Jurisdiction:

England and Wales

Insurance, Insolvency

Updated: 19 July 2022; Ref: scu.81946

In Re Burfoot and Another (Bankrupts): ChD 17 Aug 2000

A general followed by a specific assignment of book debts anticipating a bankruptcy was effective against the trustee in bankruptcy. The specific assignments were not for an undervalue, and were intended to give effect to and perfect the general assignment. The transactions would have effective in the reverse order, and should not be avoided. The assignee having failed to say how much was at stake despite repeated requests could not rely upon an assertion that he was under no obligation to disclose the figure to recover his costs despite winning the argument.

Citations:

Times 17-Aug-2000

Jurisdiction:

England and Wales

Insolvency, Costs

Updated: 19 July 2022; Ref: scu.81763

In Re Latreefers Inc: ChD 18 Jan 1999

In order for a dismissal or adjournment of a winding up petition pending adjudication of a cross claim the company must show a genuine and serious complaint and that there had been some reason for any delay in litigating the claim.

Citations:

Times 18-Jan-1999

Jurisdiction:

England and Wales

Insolvency

Updated: 19 July 2022; Ref: scu.81998

In Re Lee (A Bankrupt): ChD 24 Feb 1998

An order vesting a lease disclaimed by the trustee in bankruptcy, in a mortgagee, may provide that any profit which is made on a re-sale of the lease was to be paid on to the receiver for the benefit of creditors.

Citations:

Times 24-Feb-1998, Gazette 08-Apr-1998

Statutes:

Insolvency Act 1986 320

Jurisdiction:

England and Wales

Citing:

Appealed to – In Re Lee (A Bankrupt) CA 22-Aug-1999
The court has sufficient discretion to order that the surplus proceeds of sale of a leasehold interest could be paid to the liquidator despite his having himself disclaimed any interest in the lease. Nobody else had claimed an interest, and the . .

Cited by:

Appeal from – In Re Lee (A Bankrupt) CA 22-Aug-1999
The court has sufficient discretion to order that the surplus proceeds of sale of a leasehold interest could be paid to the liquidator despite his having himself disclaimed any interest in the lease. Nobody else had claimed an interest, and the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 19 July 2022; Ref: scu.82001

In Re Grey Martin Ltd: ChD 29 Jun 1999

The remuneration of a provisional liquidator takes precedence over the costs and expenses of a liquidator. Accordingly the expenses of the provisional liquidator for VAT, and PAYE and National Insurance take a similar priority over later costs of a liquidator.

Citations:

Times 29-Jun-1999

Statutes:

Insolvency Rules 1986 4.218(1)(a)

Jurisdiction:

England and Wales

Insolvency

Updated: 19 July 2022; Ref: scu.81910

In Re Lomax Leisure Ltd: ChD 4 May 1999

A landlord may exercise a right of peaceable re-entry without court action after his tenant company went into administration. It was not the enforcement of a security so as to be restricted by insolvency legislation.

Citations:

Times 04-May-1999, Gazette 26-May-1999

Statutes:

Insolvency Act 1986 10(1)

Jurisdiction:

England and Wales

Landlord and Tenant, Insolvency

Updated: 19 July 2022; Ref: scu.82007

Minmar (929) Ltd and Another v Khalatschi and Another: ChD 8 Apr 2011

Application was made to set aside the appointment of the company’s administrators.

Judges:

Sir Andrew Morritt Ch

Citations:

[2011] EWHC 1159 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 19 July 2022; Ref: scu.441406

In Re M (A Debtor) (488-Io of 1996): ChD 10 Feb 1999

A wife who had an order for ancillary relief in her favour, but whose husband entered into an Individual Voluntary Arrangement, was obliged to accept the allotted dividend, but her special position under the Act was also to be acknowledged. She had the choice of awaiting discharge from the IVA first.

Citations:

Gazette 03-Mar-1999, Times 10-Feb-1999

Statutes:

Insolvency Act 1986 281(5)

Jurisdiction:

England and Wales

Family, Insolvency

Updated: 19 July 2022; Ref: scu.82012

In Re International Bulk Commodities Ltd: ChD 26 Aug 1992

Company receivers in insolvency can include unregistered companies.

Citations:

Gazette 26-Aug-1992, [1993] 3 CL 247

Statutes:

Insolvency Act 1986 29(2)

Jurisdiction:

England and Wales

Cited by:

Distinguished – 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. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 19 July 2022; Ref: scu.81947

In Re Kentish Homes Ltd: ChD 31 Mar 1993

The question was whether a post-liquidation liability to community charge on empty flats was an expense of the liquidation.
Held: The company was the chargeable person in respect of the flats for the relevant periods, but the liability was nevertheless not a liquidation expense. It would rank as such only if the court, as a matter of discretion, directed the liquidators to discharge the obligation out of the assets in their hands. There was however no ground upon which the court should do so.
Sir Donald Nicholls V-C said: ‘whether debts should count as expenses of the liquidation is a matter for the discretion of the court’

Judges:

Sir Donald Nicholls V-C

Citations:

Gazette 31-Mar-1993, [1993] BCLC 1375

Jurisdiction:

England and Wales

Citing:

Applied – In re Atlantic Computer Systems Plc CA 1992
The chargor was a company which arranged with the chargee, a funding bank, that it should purchase equipment and let it on hire purchase to the chargor with permission to sub-lease to end users. The chargor charged to the chargee by way of security . .
Cited – In 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 . .

Cited by:

Cited – Kahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL 20-Feb-2002
A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Rating

Updated: 19 July 2022; Ref: scu.81975

In Re Kudos Glass Ltd (In Liquidation): ChD 30 Nov 2000

The identity of the petitioner was crucial in determining whether a company voluntary arrangement had been determined, and its trusts discharged by a winding up order. The company’s voluntary arrangement would be determined on the winding up order where the petitioning creditor supervised the arrangement or a creditor bound by the arrangement or, if the petition creditor was not a party, where the supervisor was obliged to bring the petition himself but had failed to do so. It all depends upon the circumstances, the terms of the scheme, and the conduct of the bound creditors. Insolvency legislation would decide what was implied as to the state of the trusts.

Citations:

Times 30-Nov-2000, Gazette 18-Jan-2001

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 19 July 2022; Ref: scu.81979

In Re H S Smith and Sons: ChD 6 Jan 1999

A partnership, itself insolvent, could benefit from an administration order, though one of the partners personally had assets which could cover the debts. The test was the present inability of the firm to pay its debts, and the purpose was to save the firm.

Citations:

Times 06-Jan-1999

Jurisdiction:

England and Wales

Insolvency

Updated: 19 July 2022; Ref: scu.81927

Akers and Others v Samba Financial Group: SC 1 Feb 2017

Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the company, but Saudi law would not recognise such trusts. The shares had been transferred to the defendants, and the liquidators now sought to have the transfer set aside as having been in breach of trust.
Held: Samba’s appeal succeeded. The transfer to Samba did not dispose of any rights belonging to SICL within the meaning of s. 127.
In the eyes of English law, a trust may be created, exist and be enforceable in respect of assets located in a jurisdiction, the law of which does not recognise trusts in any form.
At common law, the interest created by a trust depends on the law governing the trust. The lex situs may treat a disposition of shares to a third party as overriding any interest of the beneficiary in the shares. Even so, a common law trust may exist in respect of those shares. A trust can be created, exist and be enforced in respect of assets located in a jurisdiction such as Saudi Arabia, the law of which does not recognise trusts in any form.
The Hague Convention does not change this conclusion, since one of its aims was exactly to provide for the recognition of trusts in jurisdictions which did not themselves know of the institution.

Judges:

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Collins

Citations:

[2017] 1 BCLC 151, [2017] WTLR 373, [2017] UKSC 6, [2017] WLR(D) 57, [2017] 2 All ER 799, [2017] 2 WLR 713, [2017] 2 All ER (Comm) 97, [2017] BPIR 263, [2017] AC 424, UKSC 2015/0009

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Video Summary

Statutes:

Cross-Border Insolvency Regulations 2006, Insolvency Act 1986 127 436

Jurisdiction:

England and Wales

Citing:

At First Instance – Akers and Others v Samba Financial Group ChD 28-Feb-2014
Samba sought a stay of insolvency proceedings. Shares in a Saudi company were held in trust by a company registered in Cayman. Upon that company going into liquidation, the shares were transferred to the defendant, who now argued that since Saudi . .
Appeal from – Akers and Others v Samba Financial Group CA 4-Dec-2014
Shares in a Saudi company were held I trust for a Cayman company which had gone into liquidation. Saudi law did not recognise such trusts, and the parties now disputed which was the forum conveniens.
Held: The liquidators’ appeal succeeded. . .
Cited – Orr Ewing v John Orr Ewing and Co and Orr Ewing’s Trustees HL 5-Dec-1882
A contract of copartnery provided that in the event of the death of any of the partners the surviving and solvent partners who should continue the business should pay out to the representatives of the deceased the amount at his credit in the books . .
Cited – Attorney General v Jewish Colonization Association 1901
The court was asked whether on the death of the settlor and the termination of his life interest, the foreign shares held on trust were taxable as on a succession. . .
Cited – British South Africa Co v De Beers Consolidated Mines Ltd CA 1910
The equitable rule against clogging the equity of redemption of a mortgage applied to a contract governed by English law and would be enforced against a contracting party as regards land abroad in a state where the equity of redemption may not be . .
Cited – In re Berchtold 1923
. .
Cited – Archer Shee v Garland HL 15-Dec-1930
The parties disputed the taxpayer’s liability to income tax on income coming due to her on an American based family trust.
Held: A beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject . .
Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Cited – Duke of Marlborough v Attorney General 1945
The Court was asked whether foreign shares held on trust were taxable as on a succession on the death of the beneficiary of the trust.
Held: The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as . .
Cited – Re Philipson-Stow HL 1961
The section excluded from liability for estate duty property ‘passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of . .
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Lake v Bayliss 1974
As to the sale of land: ‘ It is by reason of this trusteeship that the vendor who breaks his contract of sale by reselling to someone else has been held to be accountable to the first intended purchaser for the proceeds of sale.’ . .
Cited – Lightning v Lightning Electrical Contractors Ltd CA 1998
Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company . .
Cited – Luxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
Cited – Bristol 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 . .
Cited – Clark and Whitehouse (Joint Administrators of Rangers Football Club Plc), Re Directions SCS 23-Mar-2012
(Outer House) Contracts were made in 2011 and subject to English law, between Rangers and two English limited liability partnerships (together ‘Ticketus’). Under the contracts, Ticketus had paid Rangers large sums for future tranches of season . .
Cited – Glasgow City Council v Springboig St John’s School and Another SCS 27-Mar-2014
The civil law concept of patrimony has been developed to explain the protection of trust property held by a trustee against claims by the trustee’s personal creditors . .
Cited – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
Cited – Ayerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
Cited – In re Earl Leven, Inland Revenue Comrs v Williams Deacon’s Bank Ltd ChD 1954
Wynn-Parry J said: ‘the word ‘disposition’, taken by itself, and used in its most extended meaning, is no doubt wide enough to include the act of extinguishment’, but he rejected such a wide interpretation of that word in the Finance Act 1940, . .
Cited – Inland Revenue Commissioners v Buchanan CA 1958
The surrender of a life interest under a will trust in favour of those people entitled in remainder operated as a ‘disposition’ of that life interest for the purposes of sections 20 and 21 of the Finance Act 1943.
Jenkins LJ specifically . .
Cited – Re Mal Bower’s Macquarie Electrical Centre Pty Ltd (in liquidation) 1974
The liquidator made a claim against the bank for the amount of the Payments had been made out of the company’s bank account between the date of the petition and the date of the order and the date when the account was subsequently closed.
Held: . .
Cited – In re J Leslie Engineers Co Ltd 1976
The director of a company between presentation of a petition to wind up and the making of the order paid over pounds 1050 to a creditor for work done. Of this sum, pounds 800 was paid by way of a cheque drawn on the personal account of the director . .
Cited – Bristol 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 . .
Cited – Re S A and D Wright Ltd, Denney v John Hudson and Co Ltd CA 1992
Fox LJ said: ‘A disposition carried out in good faith in the ordinary course of business at a time when the parties were unaware that a petition had been presented would usually be validated by the court unless there is ground for thinking that the . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Express Electrical Distributors Ltd v Beavis and Others CA 19-Jul-2016
Sales LJ said: validation will ordinarily only be granted ‘if there is some special circumstance which shows that the disposition in question … has been … for the benefit of the general body of unsecured creditors’. . .
Cited – Attorney General v Jewish Colonisation Association 1901
. .
Cited – Cook Industries Inc v Galliher ChD 1979
The plaintiff claimed a declaration that the defendants held a flat in Paris together with its contents in trust for the plaintiff, and made an order compelling the defendants to allow the plaintiff to inspect the flat. The fact that the . .
Lists of cited by and citing cases may be incomplete.

Trusts, International

Updated: 18 July 2022; Ref: scu.573799

In Re Bellmex International Ltd: ChD 23 Mar 2000

The liquidator of a company in a creditors voluntary liquidation, and which had been importing cigarettes received a proof of debt from a company in Zimbabwe. The liquidator suspected that the proof relied upon a false declaration in denying that true country of origin of the cigarettes to avoid import duty, and sought an order for the examination of the company’s director and its books.
Held: The court said that inspection was unnecessary. The liquidator should rather reject the proof if he believed it to be incorrect or doubtful, leaving the claimant to appeal, and prove his debt fully. In this case the director had offered to be interviewed, and the likely sums to be realised were nil. An order under section 236 should only be made it it was clearly necessary to make one. An order for costs on an indemnity basis was made against the liquidator.

Judges:

Evans-Lombe J

Citations:

Gazette 23-Mar-2000, Times 31-Mar-2000

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Citing:

Cited – Re Bank of Credit and Commerce International Sa ChD 3-Jan-1994
Cross examination on an affidavit requested despite there being no extraneous evidence. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 July 2022; Ref: scu.81743

In Re Brefec Installations Ltd (In Liquidation): ChD 18 May 2000

A company entered into a voluntary arrangement, but only maintained payments at the expense of incurring substantial further post-CVA losses. The liquidators sought directions for payment of undistributed sums received by them. A standard form agreement was in place under which it could not be said that any such sum could be held on trust for the company or its creditors.

Citations:

Gazette 18-May-2000

Jurisdiction:

England and Wales

Insolvency

Updated: 18 July 2022; Ref: scu.81756

In Re Dicksmith (Manufacturing) Ltd (In Liquidation): ChD 7 Jul 1999

The power of a liquidator in voluntary liquidation proceedings, to apply to the court to be allowed to exercise powers normally reserved to a liquidator appointed by the court, extended beyond matters such as litigation to protect assets and ensure pari passu distribution among creditors. The power could also be used to allow an application to stay proceedings.

Citations:

Times 07-Jul-1999

Statutes:

Insolvency Act 1986 112

Jurisdiction:

England and Wales

Insolvency

Updated: 18 July 2022; Ref: scu.81847

In Re FJL Realisations Ltd: ChD 2 Mar 2000

Administrators took on new employees during the period of administration, but when it came to an end, they were unable to pay the PAYE and NIC for the employees.
Held: The statute gave special priority to debts incurred under new contracts. The liability for PAYE fell under that category, and so did liability for NIC, and these took precedence over the expenses of administration.

Citations:

Gazette 02-Mar-2000, Times 21-Mar-2000

Statutes:

Insolvency Act 1986 19(4) 19(5) 19(6)

Jurisdiction:

England and Wales

Citing:

Appealed to – In Re FJL Realisations Ltd CA 2-Aug-2000
Administrators took on new employees during the period of administration, but when it came to an end, they were unable to pay the PAYE and NIC for the employees.
Held: The statute gave special priority to debts incurred under new contracts. . .

Cited by:

Appeal from – In Re FJL Realisations Ltd CA 2-Aug-2000
Administrators took on new employees during the period of administration, but when it came to an end, they were unable to pay the PAYE and NIC for the employees.
Held: The statute gave special priority to debts incurred under new contracts. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 18 July 2022; Ref: scu.81886

Rose v AIB Group (UK) plc and Another: ChD 9 Jun 2003

The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it had acted already in such a way as to put its own position at risk, and that the claim in restitution should be denied.
Held: The court was required to try to achieve equal payment pari passsu of the debts. The bank was entitled to an order validating payments it had made prior to presentation. For payments made subsequently, the defence of restitution might be available according to the facts of the case allowing for good and bad faith. Here the alleged change of position resulted form the bank’s own act, not on any assessment of the validity of the credits.

Judges:

Nicholas Warren QC

Citations:

Times 08-Jul-2003, Gazette 31-Jul-2003

Statutes:

Insolvency Act 1986 127

Jurisdiction:

England and Wales

Citing:

Cited – Dextra Bank and Trust Company Limited v Bank of Jamaica PC 26-Nov-2001
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica’s foreign exchange control regulations. It was asserted that by presenting the cheque used in the . .
Cited – Bank of Ireland v Hollicourt (Contracts) Limited CA 20-Oct-2000
A bank continued to pay on cheques presented to it against the company’s bank account even after the presentation of a petition for bankruptcy. The liquidator sought recovery of the amounts paid from the bank as well as the payees. It was held that . .
Cited – Re S A and D Wright Ltd, Denney v John Hudson and Co Ltd CA 1992
Fox LJ said: ‘A disposition carried out in good faith in the ordinary course of business at a time when the parties were unaware that a petition had been presented would usually be validated by the court unless there is ground for thinking that the . .
Cited – In re Gray’s Inn Construction Co Ltd CA 1980
After the presentation of a petition for the winding up of the company moneys were paid in and out of the company’s bank account which was overdrawn. The liquidator issued a summons for a declaration that the amounts credited and/or debited to the . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 17 July 2022; Ref: scu.184532

French v Barcham and Another: ChD 4 Jul 2008

The court was asked the extent to which a beneficial tenant in common who continues in occupation of a property following the bankruptcy of the other beneficial tenant in common ought to compensate the bankrupt’s estate for that continued occupation.
Held: The 1996 Act did not provide an exhaustive regime for determining rights as between co-owners, and the judge had been wrong to require the trustee in bankruptcy to provide some basis under the Act to make his claim. If necessary the court could look to its equitable jurisdiction to find a basis for such a claim.

Judges:

Blackburne J

Citations:

[2008] EWHC 1505 (Ch), Times 24-Jul-2008

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 12 815

Jurisdiction:

England and Wales

Citing:

Cited – Stack 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 . .
Lists of cited by and citing cases may be incomplete.

Land, Insolvency

Updated: 17 July 2022; Ref: scu.270630

A Company: ChD 19 Jan 2005

Application by the company for an injunction restraining the Respondent, Publishing 2000 Group Limited from presenting a winding up petition against the company in reliance on a statutory demand.

Judges:

Rimer J

Citations:

[2005] EWHC 3551 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 17 July 2022; Ref: scu.270425

First Independent Factors and Finance Ltd v Mountford: ChD 23 Apr 2008

The claimant factors sought to attach personal liability to the debts of the company to the defendant director saying that he was in breach of section 216.

Judges:

Lewison J

Citations:

[2008] EWHC 835 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 216

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 14 July 2022; Ref: scu.267061

Jacob v Vockrodt: QBD 12 Oct 2007

The claimant sought damages saying that the instigation by the defendant of insolvency proceedings had been malicious.

Judges:

Peter Coulson QC HHJ

Citations:

[2007] EWHC 2403 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barnes 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 12 July 2022; Ref: scu.261566

AWB (Geneva) SA and Another v North America Steamships Ltd and Another: CA 18 Jul 2007

A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance proceedings in Canada. The Court of Appeal refused to grant an anti-suit injunction, because the choice of law and choice of jurisdiction agreement did not apply to the insolvency proceedings. The proceedings in Canada did not relate to a dispute under the contract. They were part of insolvency proceedings. It was a matter for the Canadian Court to decide on the relief that it is prepared to grant within the scope of those proceedings as it is concerned with issues of insolvency and not with issues which relate to the contractual obligations under the agreement.

Judges:

Chadwick LJ, Latham LJ, Thomas LJ

Citations:

[2007] EWCA Civ 739, [2007] 2 Lloyds Rep 315

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – AWB Geneva Sa and Another v North America Steamships Ltd ComC 17-May-2007
Whether a party to a contract governed by English law and subject to the exclusive jurisdiction of the English High Court can found on these provisions to restrain the counterparty’s foreign trustee in bankruptcy from seeking an order in foreign . .

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract, Insolvency

Updated: 11 July 2022; Ref: scu.254599

AWB Geneva Sa and Another v North America Steamships Ltd: ComC 17 May 2007

Whether a party to a contract governed by English law and subject to the exclusive jurisdiction of the English High Court can found on these provisions to restrain the counterparty’s foreign trustee in bankruptcy from seeking an order in foreign insolvency proceedings that certain conditions precedent to liability under the contract should cease to apply.

Judges:

Field J

Citations:

[2007] EWHC 1167 (Comm)

Links:

Bailii

Cited by:

Appeal from – AWB (Geneva) SA and Another v North America Steamships Ltd and Another CA 18-Jul-2007
A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance . .
Lists of cited by and citing cases may be incomplete.

Contract, Jurisdiction, Insolvency

Updated: 11 July 2022; Ref: scu.252439

Hickling v Baker: CA 4 Apr 2007

The defendant, an undischarged bankrupt, appealed an order made for his committal to prison after failing to co-operate with his trustee.
Held: The discharge of the bankruptcy had been extended already because of the defendant’s failure to co-operate. The defendant had not been given notice of the application for his committal. Section 364 was not incompatible with the defendant’s human rights but an application had to be made on notice save where justified on the evidence. Even then, he should be brought directly before the court where he should be allowed to make representations. It was inappropriate to place the duty on the defendant to apply for his discharge from the committal.

Judges:

Sir Anthony Clarke MR, Rix LJ, LLoyd LJ

Citations:

[2007] EWCA Civ 287, Times 19-Apr-2007

Links:

Bailii

Statutes:

Insolvency Act 1986 364

Jurisdiction:

England and Wales

Insolvency, Human Rights

Updated: 10 July 2022; Ref: scu.250986

The Scottish Lion Insurance Company Ltd, Re Sanction of A Scheme of Arrangement: SCS 8 Mar 2006

Sanction had been sought for a scheme of arrangement on the winding up of an insurance company. There were objections. The original scheme had been proposed under English law, and it would be inappropriate for a Scottish court to try to sanction such an arrangement. Payment of et fess of Engliah lawyers was sought.
Held: the court could not sanction the payment in the manner requested. The court set out how the Auditor must look at the English solicitor’s fee account.

Citations:

[2006] ScotCS CSOH – 37

Links:

Bailii

Statutes:

Companies Act 1985 425, Court of Session Act 1988, Interpretation Act 1978 811

Jurisdiction:

Scotland

Citing:

Cited – Wilson v Craig 1983
. .
Cited – Wimpey Construction (UK) Ltd v Martin Black and Co (Wire Ropes) Ltd 1988
The provisions of the Table of Fees under the Rules of Court were only applicable to Scottish solicitors. The court set out how fees incurred to solicitors practising outside Scotland are recovered in a Scottish taxation of expenses. In summary: 1. . .
Cited – Laing v Scottish Arts Council SCS 15-Dec-2000
A Lord Ordinary has power to correct an interlocutor to bring it into line with the court’s original intention. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Costs

Updated: 07 July 2022; Ref: scu.238902

In Re Cranley Mansions Ltd: ChD 23 Jun 1994

There had been a material irregularity in a creditors’ meeting called to approve a voluntary arrangement, where the chair of the meeting had put forward an highly debatable estimate of one creditor’s debt. The voluntary arrangement was set aside.

Judges:

Ferris J

Citations:

Gazette 18-Jan-1995, Times 23-Jun-1994

Statutes:

Insolvency Rules 1986 1.17

Jurisdiction:

England and Wales

Insolvency

Updated: 06 July 2022; Ref: scu.81819

In the Matter of T and N Limited and others: ChD 12 Apr 2006

Judges:

The Honourable Mr Justice David Richards

Citations:

[2006] 3 All ER 755, [2006] 1 WLR 1792, [2006] EWHC 842 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

See Also – T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others ChD 9-May-2003
T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their . .
See Also – Re Tand N Ltd and Others ChD 21-Oct-2004
. .
See Also – Alexander Forbes Trustee Services Limited and Another v Jackson and Others ChD 2-Nov-2004
. .
See Also – Freakley, Gleave, Squires, T&N Limited v Centre Reinsurance International Company, Muenchener Rueckversicherungs-Gesellschaft, European International Reinsurance Company Limited, Curzon Insurance Limited ChD 26-Nov-2004
. .
See Also – T and N Ltd and Others, Re the Insolvency Act 1986 (Communications) ChD 8-Dec-2004
. .
See Also – In re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
See Also – T and N Ltd and Others, In the Matter of the Insolvency Act 1986 ChD 21-Dec-2005
. .
See Also – T and N Ltd and others v In the Matter of the Insolvency Act 1986 (Conflict of Law) ChD 21-Dec-2005
. .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 06 July 2022; Ref: scu.241963

Goel v Pick: ChD 12 Apr 2006

The bankrupt had been entitled to a valuable vehicle registration mark ‘AMR 1T’. He sold it to a creditor, the claimant to clear that debt. The trustee now said that the purported assignment was ineffective.
Held: ‘VRMs are assigned to vehicles, not to registered owners or other individuals. The Secretary of State has power to assign or re-assign a VRM under Section 23(2) but a vehicle owner cannot require him to do so. The only relevant right which a vehicle owner has in relation to the transfer of a VRM from one vehicle to another is to seek the exercise in his favour of the Secretary of State’s power under Section 26. ‘ The right was not a chose in action capable of assignment. Had he been entitled to the VRM, any assignment would have been an unlawful preference.

Judges:

Sir Francis Ferris

Citations:

[2006] EWHC 833 (Ch), Times 28-Jun-2006

Links:

Bailii

Statutes:

Vehicle Excise and Registration Act 1994 23 26, Insolvency Act 1986 340(3)

Jurisdiction:

England and Wales

Citing:

Distinguished – In re Fry ChD 1946
A settlor executed a transfer of shares but failed to obtain the consent of the Treasury under the Regulations. The transferees argued that the testator had executed documents which were appropriate to the subject matter of the gift, namely the . .
Lists of cited by and citing cases may be incomplete.

Administrative, Insolvency, Road Traffic

Updated: 05 July 2022; Ref: scu.240438

Harlow 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 such an enforcement.
Held: Where the terms of suspension were expressed so as to indicate that the order for possession took effect on a specified date, but execution was suspended on terms, the secure tenancy ended on the specified date, even if the terms of suspension were complied with. The secure tenancy had already come to an end by the time of the bankruptcy. The 1985 Act made a specific distinction between suspending execution of a possession order, and postponing the date for possession. The maintenance of the possession order was not an action against the property of the defendant. The possession order was not vitiated by the bankruptcy.

Judges:

Lord Justice Chadwick, Chancellor, The Right Hon Sir Paul Kennedy

Citations:

[2006] 1 WLR 2116, [2006] EWCA Civ 156, Times 15-Mar-2006, [2006] BPIR 712, [2006] HLR 27, [2006] 2 P and CR 16

Links:

Bailii

Statutes:

Housing Act 1985 79, Insolvency Act 1986 285

Jurisdiction:

England and Wales

Citing:

Cited – 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.
Cited – Ezekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .
Cited – Thompson v Elmbridge Borough Council CA 1987
The wife was the secure tenant of the premises, against whom the local authority landlord obtained a possession order on grounds of arrears of rent, not to be enforced on payment of a weekly sum off the arrears in addition to what the order . .
Cited – Burrows v Brent London Borough Council HL 31-Oct-1996
The authority had obtained a possession order from its secure tenant but then agreed to accept payments toward the arrears. The tenant applied for and was granted a declaration that she had on that agreement acquired a new tenancy. The authority . .

Cited by:

Cited – Bristol City Council v Hassan and Glastonbury CA 23-May-2006
The council had obtained possession orders for two properties from secure tenants, but the orders were suspended for so long as rent arrears were being discharged. The judges had understood that a date must appear on the possession order.
Cited – White v Knowsley Housing Trust and Another CA 2-May-2007
The tenant was an assured tenant. She fell into arrears of rent and a possession order was made, but suspended on terms. The court considered whether she continued to be an assured tenant, and could assert a right to buy the property as an assured . .
Cited – Jones v London Borough of Merton CA 16-Jun-2008
The court was asked ‘If a former secure tenant of a dwelling-house who has become a ‘tolerated trespasser’ in it decides to cease to occupy it, does his liability to pay mesne profits to his former landlord in respect of the dwelling-house cease . .
Cited – Knowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; Porter v Shepherds Bush Housing Association HL 10-Dec-2008
The House considered situations where a secure or assured tenancy had been made subject to a suspended possession order and where despite the tenant failing to comply with the conditions, he had been allowed to continue in occupation.
Held: . .
Cited – Austin v Mayor and Burgesses of The London Borough of Southwark SC 23-Jun-2010
The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .
Lists of cited by and citing cases may be incomplete.

Housing, Insolvency

Updated: 05 July 2022; Ref: scu.239849

Donohoe v Ingram: ChD 20 Jan 2006

The appellant had lived with the bankrupt for several years, and sought an order delayng sale of the house they had lived in until their children had grown up. She said the circumstances were exceptional.
Held: The fact that the delay might put at risk the payment of the creditors in full and with interest made it not sufficient to require them to wait. There was no human right violated.

Citations:

[2006] EWHC 282 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 335A

Jurisdiction:

England and Wales

Citing:

Cited – Harman v Glencross 1986
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was . .
Cited – In re Holliday CA 1981
A property adjustment order cannot be made against a bankrupt former spouse because the property of the bankrupt vests in the trustee in bankruptcy against whom an order under section 24 cannot be made. It was highly unlikely that postponement of . .
Cited – Claughton v Charalambous 1998
What is required of the court in applying section 335A(3) is, in effect, a value judgment. The court must look at all the circumstances and conclude whether or not they are exceptional. That process, he considered, left ‘very little scope for the . .
Cited – Re Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks CA 1991
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been . .
Cited – Barca v Mears ChD 2005
While the categories of exceptional case which might allow delay in the sale of a bankrupt’s property are not circumscribed by the previous case-law, the only cases subsequent to In Re Citro in which orders for possession and sale have been withheld . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Price and others v Leeds City Council CA 16-Mar-2005
The defendant gypsies had moved their caravans onto land belonging to the respondents without planning permission. They appealed an order to leave saying that the order infringed their rights to respect for family life.
Held: There had been . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 05 July 2022; Ref: scu.238692

Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1658): CA 9 Dec 2005

Judges:

Lord Justice Waller Lord Justice Jonathan Parker Mr Justice Moses

Citations:

[2005] EWCA Civ 1658

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .

Cited by:

See Also – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Administrative, Agriculture, Insolvency

Updated: 05 July 2022; Ref: scu.238637

Cabvision Ltd v Feetum and others: CA 20 Dec 2005

The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were directly affected by the appointment. As to the appointment itself ‘it is inconceivable that in enacting the relevant provisions of the 2002 Act Parliament intended to equate a power for a financier to appoint an administrative receiver with ‘step-in rights’.’ Accordingly the appointment had been invalid.

Judges:

Jonathan Parker LJ

Citations:

Times 02-Jan-2006, [2005] EWCA Civ 1601

Links:

Bailii

Statutes:

Insolvency Act 1986, Enterprise Act 2002, Limited Liability Partnerships Act 2000 14(1), Limited Liability Partnerships Regulations 2001 5

Jurisdiction:

England and Wales

Citing:

Cited – Foss v Harbottle 25-Mar-1843
Company alone may sue for legal wrong against it.
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Meadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another CA 1989
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
Cited – Meadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another CA 1989
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
Cited – Meadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another CA 1989
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
Cited – In Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
Cited – Secretary of State for Trade and Industry v Jabble and Others CA 22-Jul-1997
The Secretary of State sought company director disqualification orders. The defendants challenged the administrative receivership, saying that the appointment of the administrative receiver was invalid, and hence that the conditions of section 6 . .
Cited – Re Kaytech International plc; Secretary of State for Trade and Industry v Kaczer and others CA 1999
Robert Walker LJ said that the expression ‘de facto director’ had been in use for a long time, and commented on the failure to distinguish in pleadings between pleas that someone was a shadow or a de facto director. The two different labels were not . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 04 July 2022; Ref: scu.236565

In re GHE Realisations Ltd (In Administration): ChD 4 Nov 2005

The administrators having made a distribution, concluded that no further assets would be recovered and sought directions from the court to allow them to withdraw and close the administration.
Held: The court had power to make the order requested which would lead to the dissolution of the company. The test was expressed in the present tense – what were the considered assets as understood by the administrators at the time they posed the question.

Citations:

[2005] EWHC 2400 (Ch), Times 11-Nov-2005

Links:

Bailii

Statutes:

Insolvency Act 1986 SB1 p65(3)

Jurisdiction:

England and Wales

Citing:

Comments disapproved – In re Ballast plc (in Administration) and Others ChD 21-Oct-2004
The administrator sought to move direct from an administration to insolvency proceedings without first closing the administration by a court order.
Held: The 2002 was intended to allow such a procedure. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 July 2022; Ref: scu.234714

Home Insurance Company, Re: ChD 10 Nov 2005

The parties sought approval of scheme of arrangement of the American company at issue, a company conducting mainly re-insurances. Detailed proposals were put to the court as to the recovery of sums due to the company and payment out to the claimants or appropriate sums by way of compromise. Some creditors opposed the proposal. A request was made that any approval be delayed pending the outcome of a related application to be heard in the US.
Held: The application was partisan, and there was nothing in their case against the sanctioning of the scheme, given that assurances were made that the US proceedings would not be prejudiced.

Judges:

Mann J

Citations:

[2005] EWHC 2485 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 425

Jurisdiction:

England and Wales

Citing:

Cited – In re British Aviation Insurance Company Ltd ChD 21-Jul-2005
Complaint was made that the turn-out at the meeting to approve the proposed scheme of arrangement was about 15% representing just over half in value of the total claims, judged in each case by reference to ‘actual or pending’ claims. Counsel for the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 04 July 2022; Ref: scu.234715

Coulter 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 that that this application was based on the grounds already rejected on the first demand.
Held: Circumstances had changed, and there was a possibility that the earlier costs order might be vacated. In such circumstances there was no point in the court deciding the issue presented to it. Earlier costs orders were set aside.

Judges:

Waller, Chadwick, Carnwath LJJ

Citations:

[2005] EWCA Civ 1113, [2005] 1 WLR 130

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Coulter v Chief Constable of Dorset Police ChD 12-Dec-2003
The claimant had failed in an action for damages against the respondent, and had failed to pay the costs award. The respondent issued a statutory demand. He claimed that it was invalid because the chief constable had changed in the interim, and . .
See Also – Coulter 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.
Cited – Turner v Royal Bank of Scotland CA 2000
The court was asked whether a debtor could pursue at the hearing of the bankruptcy petition a challenge to the petition debt on grounds which had already failed on an earlier application to set aside the statutory demand. . .
Cited – Atherton v Ogunlende and Another CA 20-Nov-2001
It would be a waste of court time and the parties’ money to allow a debtor, who had already failed on his application to set aside a statutory demand, to advance the same arguments by way of challenge to the petition debt on the hearing of the . .
Cited – Brillouet v Hachette Magazines Ltd 1996
A party should not be allowed to put an argument again which had been lost at an earlier stage merely because he felt he had found a better way of putting the argument. . .
Cited – Barnes 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 . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – West Bromwich Building Society v Crammer CA 2002
Referring to Turner: ‘Those observations were plainly obiter in that case; but will be given, no doubt, the weight which they deserve. But they do not have the effect of depriving a court exercising its functions under s 271 of the duty to decide . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 04 July 2022; Ref: scu.230009

Krasner v McMath; in Re Huddersfield Fine Worsteds Limited: CA 12 Aug 2005

The administrators had adopted the contracts of certain employees, who now claimed that the protective awards should have priority to the expenses of the administration.
Held: The payments did fall within paragraph 99(5) and do not have super-priority.
Responsibility for protective awards on insolvency.

Judges:

Lord Justice Clarke Lord Justice Jacob Lord Justice Neuberger

Citations:

[2005] EWCA Civ 1072, Times 26-Sep-2005, [2006] 2 BCLC 160

Links:

Bailii

Statutes:

Insolvency Act 1986 Sch B1, Trade Union Labour Relations (Consolidation) Act 1992 189

Jurisdiction:

England and Wales

Citing:

Cited – In Re Hartlebury Printers Ltd 1992
Insolvency, at least per se, does not amount to a special circumstance exempting an employer from consulting employees on redundancy. Morritt J noted the distinction in the Directive between contemplated and projected redundancies and section 99 to . .
Appeal from – Krasner (Administrator of Globe Worsted Company Ltd and Huddersfield Fine Worsteds Ltd.) v Mcmath (Representing All Employees of the Companies) ChD 27-Jul-2005
. .
Cited – Powdrill and Another v Watson and Another HL 23-Mar-1995
A receiver of a companies assets, who employed former staff of the company, beyond an initial period of 14 days, becomes personally responsible for their employment contracts, and consequently becomes liable for making redundancy payments. The 1870 . .
Cited – Delaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .

Cited by:

Cited – McCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration) ChD 22-Apr-2010
The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Employment

Updated: 03 July 2022; Ref: scu.229333

Beckenham Mc Ltd v Centralex Ltd and others: ChD 10 Jun 2004

Judges:

Hart J

Citations:

[2004] EWHC 1287 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 423

Jurisdiction:

England and Wales

Citing:

Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 30 June 2022; Ref: scu.226168

Malcolm v Mackenzie, Allied Dunbar Plc: CA 21 Dec 2004

The bankrupt complained that having been made bankrupt, his self-employed pension was subject to attachment by his trustee, but had he been a member of a company scheme the asset would not, and that this was discriminatory.
Held: The differential treatment arose because contractual pension rights fell within a definition in the Act, and not from a difference in treatment of persons of different status. The appeal failed.

Judges:

Lord Justice Mummery Lord Justice Chadwick Lord Justice Tuckey

Citations:

[2004] EWCA Civ 1748, [2004] EWCA Civ 1748, Times 04-Jan-2005

Links:

Bailii

Statutes:

Welfare Reform and Pensions Act 1999 11

Jurisdiction:

England and Wales

Citing:

Appeal from – In re William Andrew Malcolm; William Andrew Malcolm v Benedict Mackenzie, Allied Dunbar ChD 26-Feb-2004
The bankrupt sought to protect his personal pension taken out before his bankruptcy. The bankruptcy was initiated by the Inland Revenue, and sought protection under Human Rights law.
Held: The alleged infringement of the former bankrupt’s . .
Cited – Dennison v Krasner, Lesser, Lawrence CA 6-Apr-2000
A retirement annuity or personal pension was part of a bankrupt’s estate before the recent Act, and vested immediately in the trustee on the bankruptcy. As such there was no need to make application to the court under s310 for an income payment . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – In Re Landau (A Bankrupt) ChD 1-Dec-1996
At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .
Cited – Kemble and Another v Kicks and Others; In Re the Trusts of the Scientific Investment Pension Plan ChD 5-Mar-1998
Provision in pension scheme withdrawing benefits to bankrupt beneficiary defeated trustees claim only if determinable or defeasible interest. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Human Rights, Financial Services

Updated: 28 June 2022; Ref: scu.221491

Freakley, Gleave, Squires, T&N Limited v Centre Reinsurance International Company, Muenchener Rueckversicherungs-Gesellschaft, European International Reinsurance Company Limited, Curzon Insurance Limited: ChD 26 Nov 2004

Judges:

The Hon Mr Justice Richards

Citations:

[2004] EWHC 2740 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others ChD 9-May-2003
T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their . .
See Also – Re Tand N Ltd and Others ChD 21-Oct-2004
. .
See Also – Alexander Forbes Trustee Services Limited and Another v Jackson and Others ChD 2-Nov-2004
. .

Cited by:

See Also – T and N Ltd and Others, Re the Insolvency Act 1986 (Communications) ChD 8-Dec-2004
. .
See Also – In re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
See Also – T and N Ltd and Others, In the Matter of the Insolvency Act 1986 ChD 21-Dec-2005
. .
See Also – T and N Ltd and others v In the Matter of the Insolvency Act 1986 (Conflict of Law) ChD 21-Dec-2005
. .
See Also – In the Matter of T and N Limited and others ChD 12-Apr-2006
. .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 27 June 2022; Ref: scu.220046

Mytravel Group Plc, Re Companies Act 1985: ChD 24 Nov 2004

The company sought approval of a proposed reconstruction under the section.
Held: Approval could not be given. To count as a reconstruction two principal qualities were required. The business carried on should be the same or similar, and those carrying on the business should be the same or similar. Here the proposal would result in the former shareholders owning only 4% of the new business.

Judges:

Mann J

Citations:

[2004] EWHC 2741 (Ch), Times 30-Nov-2004

Links:

Bailii

Statutes:

Companies Act 1985 425

Jurisdiction:

England and Wales

Citing:

Cited – In the Matter of Telewest Communications Plc and in the Matter of Telewest Finance (Jersey) Ltd ChD 22-Jun-2004
Richards J said: ‘In considering the primary position of the Opposing Bondholders, it is important to keep in mind the function of the court at this stage. This is an application by the companies for leave to convene meetings to consider the . .
Cited – Hooper v Western Counties and South Wales Telephone Co Ltd 1892
The court placed a restrictive meaning on the idea of a company reconstruction. The new company is to consist of the old shareholders. . .
Cited – Practice Statement (Companies Schemes of Arrangement) 2002
. .
Cited – Swithland Investments Ltd v IRC 1990
The court considered whether a scheme of re-arrangement of a company was a reconstruction within the meaning of the Stamp duty legislation. . .
Cited – Re South African Supply and Cold Storage Co 1904
The court had to construe the words ‘reconstruction or amalgamation’ in the memorandum of association of a company: ‘The only question I have to decide is whether, in the case of each of these two companies, there has or has not been a winding-up . .
Cited – Brooklands Selangor Holdings Limited v Inland Revenue Commissioners ChD 1970
The court had to consider whether the arrangments before it amounted to a reconstruction for stamp duty purposes: ‘I will deal first with the question whether those transactions amounted to a reconstruction. In ordinary speech the word . .
Cited – Baytrust Holdings Ltd v Inland Revenue Commissioners 1971
Whether a scheme of arrangement constituted a reconstruction for stamp duty purposes. . .
Cited – In re Courage Group’s Pension Schemes Ryan v Imperial Brewing and Leisure Ltd ChD 1987
It was possible to amend the provisions of a pension scheme provided the amendments did not conflict with the purposes of the scheme. How was a court to identify such purposes: ‘It is trite law that a power can be exercised only for the purpose for . .
Cited – Fallon v Fellows (Inspector of Taxes) ChD 2001
The court considered whether a scheme was for the purposes of reconstruction or amalgamation in a capital gains tax context. Citing South African Supply: ‘In the context I think it is clear that when the learned judge referred to the persons . .
Cited – Oswald Tillotson Limited v ORC 1933
‘When I come to consider the purpose of this section, and to see why there is to be immunity and exemption from transfer stamp duty, I find that it is because the old company is really represented or replaced by the new company, and the shareholders . .
Cited – Re Tea Corporation CA 1904
A scheme was proposed in a liquidation and a meeting of, inter alia, ordinary shareholders was proposed, who were to be given shares in the new company in place of their shares in the old, so to that extent they were affected by the scheme. The . .
Cited – In re British and Commonwealth plc (No 3) ChD 1992
Bonds were subordinated in a winding up, and the company was in administration in which the administrators were proposing a scheme of arrangement. The judge was invited to apply the Tea Corporation principles in order to arrive at a conclusion that . .
Cited – In re Ocean Steam Navigation Company Limited ChD 1939
A petition was presented for the re-organisation of the company in circumstances in which, though it was was wholly insolvent, proposed a transfer of its entire undertaking to a new company, the shares in the new company being allotted to the . .
Cited – In re Maxwell Communications plc ChD 1993
It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one’s own disadvantage, particularly by analogy with cases on set-off in . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 27 June 2022; Ref: scu.219692

Greene King Plc v Stanley and others: CA 30 Nov 2001

The claimant challenged an order that the two defendant chargors were discharged from liability to the claimants under their individual voluntary arrangement and on the basis that it had been entered under undue influence.

Citations:

[2001] EWCA Civ 1966, [2002] BPIR 491

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Undue Influence

Updated: 27 June 2022; Ref: scu.218520

Atherton v Ogunlende and Another: CA 20 Nov 2001

It would be a waste of court time and the parties’ money to allow a debtor, who had already failed on his application to set aside a statutory demand, to advance the same arguments by way of challenge to the petition debt on the hearing of the petition: ‘However, in general, it seems to me right in principle and in the public interest that, if a party has raised an argument in a proper forum, where it has been considered in connection with a particular process, in this case a bankruptcy or a prospective bankruptcy, and from which forum he had a right of appeal if he wished to exercise it, if that argument is rejected and he does not appeal, it requires exceptional circumstances before he can raise the same argument at a later stage during the same process.’ and ‘It seems that the principle enshrined in the passage in the judgment of Vinelott J, [in Brillouet v Hachette Magazines Ltd [1996] BPIR 518] approved by Chadwick LJ, and indeed his own judgment in Turner v Royal Bank of Scotland [2000] BPIR 683, indicates that the principle should not be abrogated simply because the party has found a better way of putting the same point, or wants to put in more evidence to support the same point. If there were evidence from Mr Atherton as to specific facts which really make a difference, and which he was unable to put forward on 11 March 1999 through no fault of his own (eg because it was then unavailable or unknown to him at that hearing) different considerations might apply. However, to my mind there is nothing in the subsequent evidence which justifies my going against the normal rule as laid down in Turner.’

Judges:

Neuberger LJ

Citations:

[2001] EWCA Civ 1844

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Brillouet v Hachette Magazines Ltd 1996
A party should not be allowed to put an argument again which had been lost at an earlier stage merely because he felt he had found a better way of putting the argument. . .
Cited – Turner v Royal Bank of Scotland CA 2000
The court was asked whether a debtor could pursue at the hearing of the bankruptcy petition a challenge to the petition debt on grounds which had already failed on an earlier application to set aside the statutory demand. . .

Cited by:

Cited – Coulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 27 June 2022; Ref: scu.218493

Multicultural Media Centre for the Millennium Ltd v Millennium Commission: CA 19 Oct 2001

Where a court was faced with a situation where both parties wished to proceed, but one wanted to put in an affidavit which the other had not had chance to examine, it became impossible for that judge to proceed fairly. A winding up order made under such circumstances was set aside. The case was remitted to another judge of the Chancery Division.

Judges:

Lord Justice Judge, Lord Justice Chadwick and Lord Justice Jonathan Parker

Citations:

Times 16-Nov-2001, [2001] EWCA Civ 1687

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Re Multicultural Media Centre for the Millenium Ltd CA 22-Mar-2001
. .
See Also – Millennium Commission v Multicultural Media Centre for the Millennium CA 13-Jun-2002
. .

Cited by:

See Also – Re Multicultural Media Centre for the Millenium Ltd CA 22-Mar-2001
. .
See Also – Millennium Commission v Multicultural Media Centre for the Millennium CA 13-Jun-2002
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insolvency

Updated: 27 June 2022; Ref: scu.218449

Bednash v Hearsey: CA 15 May 2001

Excessie Directors pay recoverable on insolvency

The liquidator sought permission to appeal against rejection of its claim for repayment of sums by a director who, he said, had been paid excessive amounts. The claim had een rejected because at th time of payments, the company had not been insolvent.
Held: The court approved the statement of law at first instance: ‘While a company is not actually insolvent and is continuing to trade, directors deciding what to pay themselves must strike a fair balance, taking into account the value of their services to the company, the position on creditors, the company’s overall state and the availability of funds to make the payments. Reasonable latitude must be allowed before the court will say that payments to directors are so irresponsible as to have constituted a breach of their fiduciary duties; and it would take exceptional circumstances before they would be expected (if they ever were) to suspend their own remuneration altogether.’

Judges:

Potter LJ,Sir Martin Nourse

Citations:

[2001] EWCA Civ 787

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 27 June 2022; Ref: scu.218150

Lloyds Bank Plc v Ellicott: CA 8 Feb 2002

A voluntary arrangement has contractual effect.

Judges:

Chadwick LJ

Citations:

[2002] EWCA Civ 1333, [2003] BPIR 632

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Insolvency

Updated: 23 June 2022; Ref: scu.216808

Gabriel Napier, Writer In Edinburgh v Peter Napier of Napierstoun, and Margaret Young, His Spouse: HL 29 Apr 1726

Bankrupt – A debt having been made over by a person, in favour of his wife, stante matrimonio, and by her assigned to a second husband, as part of her tocher; the assignation was found not reducible at the instance of a creditor of the first husband.

Citations:

[1726] UKHL 1 – Paton – 1, (1726) 1 Paton 1

Links:

Bailii

Jurisdiction:

Scotland

Insolvency

Updated: 17 June 2022; Ref: scu.554227

In Re the Working Project Ltd; In Re Fosterdown Ltd and Others: ChD 27 Oct 1994

Company disqualification proceedings may conclude in the county court after a winding up of the company in that court. The power to disqualify directors survives the finishing of the winding up of the company, even though the Official Receiver had had no right to commence the proceedings and the County Court had had no jurisdiction to hear them.

Judges:

Carnwath J

Citations:

Times 27-Oct-1994, Ind Summary 28-Nov-1994, [1995] BCC 197

Statutes:

Company Directors Disqualification Act 1986 6(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Re NP Engineering and Security Products Ltd; Official Receiver and Another v Pafundo and Another CA 22-Oct-1996
The official receiver began director disqualification proceedings, but before the proceedings commenced, the company was wound up. Where, on an application for the disqualification of a director, the official receiver and the Secretary of State . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 17 June 2022; Ref: scu.82247

Inland Revenue Commissioners v Duce and Another: ChD 29 Dec 1998

Deliberate concealment of arrangements for sale of assets at an undervalue to associate justified revocation of a voluntary arrangement, but the court must look at the heinousness of the irregularity before deciding as to future conduct of arrangements.

Citations:

Times 29-Dec-1998

Statutes:

Insolvency Act 1986 262(4)(b)

Jurisdiction:

England and Wales

Insolvency

Updated: 17 June 2022; Ref: scu.82341

In Re Richbell Information Services Inc: ChD 21 Jan 1999

A petition for the winding up of a company where that company appeared to have a substantial cross claim which might set off and exceed the debt on which it was based, might go ahead where the interests of the company and the creditors might so better be protected.

Citations:

Times 21-Jan-1999

Jurisdiction:

England and Wales

Insolvency

Updated: 17 June 2022; Ref: scu.82151

Inland Revenue Commissioners v Adam and Partners Ltd: ChD 2 Aug 1999

The nature of a scheme of arrangement was not closely defined, and an arrangement with creditors could be described as such even though it might give no prospect of a payout to the creditors. A voluntary arrangement approved by a majority of the creditors was binding on the Inland Revenue even though no dividend might become payable under it.

Citations:

Times 02-Aug-1999

Jurisdiction:

England and Wales

Insolvency

Updated: 17 June 2022; Ref: scu.82338