Tag: Insolvency

Regina v P: CACD 29 Mar 2000

A court could properly look at the degree of a bankrupt’s behaviour in gambling so as to materially either contribute to or materially increase the extent of his insolvency by gambling or reckless speculation, and if such behaviour was found the defendant could commit the offence. The word materially was intended to apply to either limb of the statutory offence.

Citations:

Times 29-Mar-2000

Statutes:

Insolvency Act 1986 362 (1)(a)

Insolvency

Updated: 09 April 2022; Ref: scu.85441

Morris v John Grose Group Limited: EAT 16 Sep 1998

Where an employee was dismissed by a receiver before the receiver entered into negotiations for the sale of a business, he was dismissed as part of a transfer. The word ‘transfer’ did not have to relate to a particular deal.

Citations:

Gazette 16-Sep-1998, (1998) IRLR 499

Statutes:

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

Employment, Insolvency

Updated: 09 April 2022; Ref: scu.83855

Levett and Others v Barclays Bank Plc: QBD 27 Jan 1995

A contract was set aside where the plaintiff who had put up treasury stock as security, was not told of arrangements between the debtor and the bank whereby the security would be used to repay the loan. A creditor must reveal the disadvantageous nature of a loan to a proposed surety: ‘The creditor is under a duty to the surety to disclose to the surety contractual arrangements made between the principal debtor and the creditor which both, (a) make the terms of the principal contract something different from those which the surety might naturally expect and, (b) materially affect the degree of the surety’s responsibility.’

Judges:

Michael Burton QC

Citations:

Times 27-Jan-1995, [1995] 1 WLR 1260, [1995] 2 All ER 615

Cited by:

Helpful – Lloyds TSB Bank Plc v Shorney and Another CA 20-Jul-2001
The defendant had signed a guarantee and supporting charge to support her husband’s business debts. It has been expressly limited to andpound;150,000. Without prior notification, or seeking her consent, the bank extended the loan. When it later . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking

Updated: 09 April 2022; Ref: scu.83032

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.

Judges:

Rattee J

Citations:

Times 05-Mar-1998, [1998] PLR 141, [1999] Ch 53

Cited by:

Cited – 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 . .
Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Insolvency

Updated: 09 April 2022; Ref: scu.82722

Kempe and Another v Ambassador Insurance Company (In Liquidation) (Bermuda): PC 3 Jan 1997

A scheme of arrangement though approved by the court was not itself a court order and could not be extended by the court.

Citations:

Times 03-Jan-1997

Cited by:

See Also – Kempe Jr and others v Ambassador Insurance Company PC 19-Nov-1997
(Bermuda) . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Commonwealth

Updated: 09 April 2022; Ref: scu.82723

In Re Wilmott Trading Ltd (No 2): ChD 17 Jun 1999

A waste management licence is not property. On the dissolution of a company, the licence simply ceased to exist. Nothing remained which was capable of vesting in the Crown in bona vacantia. Such a licence could not be managed or regulated properly by the Environmental Agency.

Citations:

Times 17-Jun-1999, Gazette 27-Jun-1999, Gazette 30-Jun-1999

Statutes:

Companies Act 1985 654

Jurisdiction:

England and Wales

Insolvency

Updated: 08 April 2022; Ref: scu.82296

In Re Wilmott Trading Ltd: ChD 6 May 1999

The continued ownership of a waste disposal licence was not a bar to the completion of the liquidation of the company provided the liquidator could show ability to comply with the statutory requirements for the licence.

Citations:

Gazette 06-May-1999

Statutes:

Insolvency Act 1986 106(1) 201(2)

Jurisdiction:

England and Wales

Insolvency

Updated: 08 April 2022; Ref: scu.82295

In Re T and D Industries Plc and Another: ChD 23 Nov 1999

An administrator appointed under the Act was free to dispose of a company’s assets without first making an application to court for permission, and without first obtaining approval of his proposal from the creditors. The administrator’s role would require difficult and sometimes urgent decisions.

Judges:

Neuberger J

Citations:

Times 23-Nov-1999, Gazette 01-Dec-1999

Statutes:

Insolvency Act 1986 8(3)

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 08 April 2022; Ref: scu.82217

In Re A Debtor (No 510 of 1997): ChD 18 Jun 1998

The normal rule that costs are to follow payment of the debt after the issue of an insolvency petition was exceptionally displaced when mistakes in the petition meant that the defendant had had to incur unnecessary costs.

Citations:

Times 18-Jun-1998

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.8

Jurisdiction:

England and Wales

Insolvency

Updated: 08 April 2022; Ref: scu.81664

Re 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 the execution of the deed. The solicitor claimed to retain part of the money in his hands as payment for services rendered by him to the debtor after the execution of the deed but before the adjudication.
Held: He was not entitled to the funds. As soon as the deed was executed title passed to the trustee: ‘Then the deed of assignment which had been prepared by the solicitor was executed by the debtor; its execution was an act of bankruptcy, and the solicitor knew that it was. The title of the trustee in the subsequent bankruptcy related back to that act of bankruptcy. What does that mean? The result of the relation back is, that all subsequent dealings with the debtor’s property must be treated as if the bankruptcy had taken place at the moment when the act of bankruptcy was committed. The debtor must be treated as if the bankruptcy had taken place the moment the deed was executed. Then, he being a bankrupt, all the money which he then had, and all the money which was owing to him, passed to the trustee in the bankruptcy for the purpose of being distributed by him amongst the bankrupt’s creditors’ A contrary decision would have the effect of preferring the solicitor to the other creditors.

Judges:

Lord Esher MR, Lindley LJ

Citations:

[1893] 1 QB 455

Jurisdiction:

England and Wales

Cited by:

Cited – 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; . .
Applied – Re 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 08 April 2022; Ref: scu.186755

Aviabaltika v BAB Ukio bankas: ECJ 12 Apr 2018

Opinion – Reference for a preliminary ruling – Economic and monetary policy – Free movement of capital – Implementation of financial guarantee contracts – Commencement of winding-up proceedings with regard to the financial collateral taker – Occurrence of the fact entailing the execution of the guarantee – Included of the financial guarantee in the insolvency estate – Obligation to satisfy the claims, in the first place, of the financial guarantee

Citations:

ECLI:EU:C:2018:239, [2018] EUECJ C-107/17 – O

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 07 April 2022; Ref: scu.608628

MK Airlines Ltd v Katz and Another (Acting As Joint Liquidator of MK Airlines): ChD 16 Mar 2018

Appeal against orders made following successful misfeasance claims brought by the joint liquidators of an insolvent company against one of its former administrators.

Judges:

Sarah Worthington QC DHCJ

Citations:

[2018] EWHC 540 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Torts – Other

Updated: 06 April 2022; Ref: scu.606431

Citibank Na, London Branch v Oceanwood Opportunities Master Fund and Others: ChD 19 Feb 2018

Application by the claimant, Citibank, for directions as to whether it should, as security trustee and security agent under complex loan arrangements, seek and/or act in accordance with the directions of a body of creditors of which the first defendant, Oceanwood was a majority holder of debt, and whose wishes or vote would therefore govern; or whether provisions of the documentation which exclude from voting those who ‘control’ the debtor mean that Oceanwood’s voice cannot be heard. The matter with which this judgment deals is one of jurisdiction – whether this court or the courts of New York, should be dealing with this matter in the light of the jurisdictional clauses contained in the loan documentation.

Judges:

Mann J

Citations:

[2018] EWHC 305 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction, Insolvency

Updated: 05 April 2022; Ref: scu.605341

The Secretary of State for Business, Energy and Industrial Strategy v Rigil Kent Acquisitions Ltd and Others: ChD 19 Dec 2017

Applications for the appointment of a provisional liquidator pending the hearing of various petitions for the winding up of a group of companies, on the public interest ground

Judges:

Marcus Smith J

Citations:

[2017] EWHC 3636 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 135

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 05 April 2022; Ref: scu.605339

JSC Mezhdunarodniy Promyshlenniy Bank and Another v Pugachev and Others (No 4): ChD 13 Jul 2017

The claimant bank alleged and had judgment in Russia against the defendants and sought to enforce that judgment. The bank now challenged trusts established to protect assets.

Judges:

Birss J

Citations:

[2017] EWHC 1847 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Litigation Practice

Updated: 05 April 2022; Ref: scu.591429

In re Cromptons Leisure Machines Ltd: ChD 13 Dec 2006

The section gave the court a jurisdiction to authorise payments to people would be preferred creditors in a winding up.

Judges:

Lewison J

Citations:

Times 27-Dec-2006

Statutes:

Insolvency Act 1986 18(3)

Jurisdiction:

England and Wales

Citing:

Cited – Colchester Estates (Cardiff) v Carlton Industries plc ChD 30-Mar-1984
If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: ‘There must come a . .
Cited – In re Spiralglobe Ltd 2006
. .
Cited – In re Bovell Group 2006
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 03 April 2022; Ref: scu.247761

Valach and Others v Waldviertler Sparkasse Bank AG and Others: ECJ 20 Dec 2017

ECJ (area of freedom, security and justice – Judicial cooperation in civil matters area of freedom, security and justice – Judicial cooperation in civil matters) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Scope – Action for liability in tort against the members of a committee of creditors which rejected a restructuring plan in insolvency proceedings

Citations:

ECLI:EU:C:2017:986, [2017] EUECJ C-649/16

Links:

Bailii

Jurisdiction:

European

Insolvency

Updated: 02 April 2022; Ref: scu.602119

Graysons Restaurants Ltd v Jones and Others: EAT 7 Nov 2017

EAT TRANSFER OF UNDERTAKINGS – Insolvency
RIGHTS ON INSOLVENCY
Two short questions of construction arise in an employer insolvency context concerning rights of employees to arrears of pay under Part XII ERA 1996. The first is whether a claim for equal pay arrears is a claim for ‘arrears of pay’, and in circumstances where the claim has not yet been determined, whether it gives rise to a debt to which the employee is entitled on the ‘appropriate date’. The second is whether liability for only that debt does not transfer from the insolvent employer (or transferor) to the transferee under Regulation 8 TUPE Regulations 2006, or whether the whole liability for past equal pay arrears is extinguished so far as the transferee is concerned.
The Employment Judge concluded that:
(i) equal pay arrears are not a debt payable at the time of transfer (or on the appropriate date) where the equal pay claims have not been determined and quantified. The debt will only be due if the equal pay claims succeed and not before.
(ii) If wrong about that, any liability in excess of the eight week sum guaranteed by the statutory scheme in Part XII, transfers to the transferee and is not extinguished.
The appeal succeeded in part:
(i) equal pay arrears can be ‘arrears of pay’ within s.184(1) ERA, and therefore a debt within s.182 ERA.
(ii) The Employment Judge was in error in concluding that arrears of pay arising from an equal pay claim that is as yet undetermined cannot be a claim for ‘arrears of pay’ within s.184(1) ERA.
(iii) There is a presumption that equality clauses operated in the Claimants’ contracts since their work has been rated as equivalent to their comparators. If that presumption is not rebutted by genuine material factor defences the Claimants had a legal entitlement to be paid in accordance with the equality clauses for work they performed before the appropriate date. To the extent that they were not so paid, they were entitled to arrears of pay on the appropriate date. They are in no different position to suppliers of goods who were unpaid on the appropriate date, or employees who did not receive pay due under implied or disputed oral agreements for work done before the appropriate date.
(iv) The wider point relied on by the Respondent failed. Only liabilities for up to eight weeks of arrears of equal pay do not transfer to the transferee if they constitute sums payable under Part XII ERA by the Secretary of State because the necessary conditions in ss.182 and 184 ERA are established. To the extent that the liabilities exceed the statutory limits in Part XII ERA, liability transfers to the transferee.

Citations:

[2017] UKEAT 0277 – 16 – 2811

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Insolvency

Updated: 02 April 2022; Ref: scu.601917

Deutsche Bank Ag v Sebastian Holdings Inc: ComC 13 Dec 2017

Judges:

Andrew Baker J

Citations:

[2017] EWHC 3265 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 14-Aug-2009
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 1-Dec-2009
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 28-Apr-2016
. .
Cited – Deutsche Bank Ag v Sebastian Holdings Inc ComC 16-Dec-2016
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 02 April 2022; Ref: scu.601473

Simmonds v Pearce: QBD 1 Dec 2017

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.

Judges:

Gloster LJ, Andrews J

Citations:

[2017] EWHC 35 (QB), [2017] WLR(D) 803

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Contempt of Court, Insolvency

Updated: 02 April 2022; Ref: scu.601122

Premier Motorauctions Ltd and Another v Pricewaterhousecoopers Llp and Another: CA 23 Nov 2017

Extent to which the existence of After-the-Event (‘ATE’) insurance is relevant when the court is considering an application for security for costs sought by the defendants in a claim brought by an insolvent company in liquidation.

Citations:

[2017] EWCA Civ 1872

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Costs

Updated: 01 April 2022; Ref: scu.599609

A Company v Andy Thornton Contracts Ltd: ChD 20 Nov 2013

Company’s application to restrain advertisement of petition for its winding up.
Held: The application was dismissed. The amount established of any counterclaim wasnot enough to displace the debt claimed, leaving an excess sufficient to found the petition.

Judges:

Nugee J

Citations:

[2013] EWHC 4291 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 28 March 2022; Ref: scu.592402

Re Lehman Brothers Europe Ltd: ChD 3 Aug 2017

The joint administrators of Lehman Brothers Europe Limited (In Administration) have applied for directions that would enable a substantial surplus to be distributed to the sole member of LBEL, Lehman Brothers Holdings plc (In Administration), while the Company remains in administration.

Judges:

Hildyard J

Citations:

[2017] EWHC 2031 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency

Updated: 28 March 2022; Ref: scu.591439

Vinyls Italia Spa in liquidation v Mediterranea di Navigazione SpA: ECJ 8 Jun 2017

ECJ (Area of Freedom, Security and Justice – Insolvency Proceedings : Judgment) Reference for a preliminary ruling – Area of freedom, security and justice – Insolvency proceedings – Regulation (EC) No 1346/2000 – Articles 4 and 13 – Acts detrimental to all the creditors – Conditions in which the act in question may be challenged – Act subject to the law of a Member State other than the State of the opening of proceedings – Act which is not open to challenge on the basis of that law – Regulation (EC) No 593/2008 – Article 3(3) – Law chosen by the parties – Location of all the elements of the situation concerned in the State of the opening of proceedings – Effect

Citations:

[2017] WLR(D) 385, [2017] EUECJ C-54/16

Links:

Bailii, WLRD

Jurisdiction:

European

Insolvency

Updated: 27 March 2022; Ref: scu.588308

The Co-Operative Bank Plc v Desmond Victor John Phillips: ChD 2 Jun 2017

Appeal from summary judgment given against the defendant on his counterclaim ‘for breach of contract, negligence, negligent misstatement, misrepresentation and breach of statutory duty’

Judges:

Paul Matthews HHJ

Citations:

[2017] EWHC 1320 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Banking

Updated: 27 March 2022; Ref: scu.588023

Hope v Revenue and Customs: ChD 6 Apr 2017

By a Part 7 claim, the Respondent to a bankruptcy petition presented by Her Majesty’s Revenue and Customs (‘HMRC’), Emma Hope, seeks to set aside a previous judgment of the High Court, on the ground that the it was obtained as a result of fraudulent misrepresentations. The claim also seeks damages for HMRC’s ‘acts of fraud and/or negligence/and or breach of statutory duty’. The Revenue now applied to strike out the claim.
Held: It was struck out.

Judges:

Briggs Reg

Citations:

[2017] EWHC 812 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 252

Jurisdiction:

England and Wales

Insolvency, Taxes Management

Updated: 26 March 2022; Ref: scu.583988