Welcome to the R3 Technical Library, a unique resource for searching technical and specialist information within the sector. The below are available resources for Legislation Case Law.
Supreme Court decision in R (on the application of Palmer) v Northern Derbyshire Magistrates Court and another (1 November 2023)
The Supreme Court made it clear that an administrator of a company appointed under the IA86 is not an ‘officer’ of the company within the meaning of section 194(3) of TULRCA. View
The Supreme Court made it clear that an administrator of a company appointed under the IA86 is not an ‘officer’ of the company within the meaning of section 194(3) of TULRCA. View
Denaxe Ltd v Cooper & Anor [2023] EWCA Civ 752 (30 June 2023)
The appeal concerned the extent of immunity from subsequent claims which may be enjoyed by receivers appointed by the court by way of equitable execution who obtain the approval of the court for a sale of assets over which they have been appointed. View
The appeal concerned the extent of immunity from subsequent claims which may be enjoyed by receivers appointed by the court by way of equitable execution who obtain the approval of the court for a sale of assets over which they have been appointed. View
Brake and another v The Chedington Court Estate Ltd (10 August 2023)
This Supreme Court decision re-enforces the basic principle that a party without an economic interest in an insolvency will face a high hurdle before they may establish standing to challenge an officeholder’s conduct. From a practical perspective, officeholders will be allowed to get on with administering their estate, in most circumstances, without the fear of challenge from an out-of-the-money party. View
This Supreme Court decision re-enforces the basic principle that a party without an economic interest in an insolvency will face a high hurdle before they may establish standing to challenge an officeholder’s conduct. From a practical perspective, officeholders will be allowed to get on with administering their estate, in most circumstances, without the fear of challenge from an out-of-the-money party. View
Patley Wood Farm LLP & Ors v Kicks & Anor [2023] EWCA Civ 901 (28 July 2023)
Lord Justice Arnold “It is not the Trustees' duty to act in the interests of the creditors at all costs .” View
Lord Justice Arnold “It is not the Trustees' duty to act in the interests of the creditors at all costs .” View
Re Avanti Communications Ltd (in administration) [2023] EWHC 940 (Ch) (25 April 2023)
The Joint Administrators of Avanti Communications Ltd sought determination of whether certain assets which had been sold by the Company (via a pre-pack sale) were secured by fixed or floating charges. The characterisation of assets was important as it would determine how much was to be returned to each class of creditor. The application was made as an application for directions pursuant to paragraph 63 of Schedule B1 of the Insolvency Act 1986. View
The Joint Administrators of Avanti Communications Ltd sought determination of whether certain assets which had been sold by the Company (via a pre-pack sale) were secured by fixed or floating charges. The characterisation of assets was important as it would determine how much was to be returned to each class of creditor. The application was made as an application for directions pursuant to paragraph 63 of Schedule B1 of the Insolvency Act 1986. View
Durkan (as liquidator of Long Compton Project Ltd) and another v Jones (13 June 2023)
The Chancery Court ruled on the bankruptcy petition brought by the petitioners against the debtor, the director of a wound-up company. The sole issue before the court was whether it had jurisdiction to make a bankruptcy order, specifically whether at any time in the period of three years ending with the date of presentation of the petition the debtor had either had a place of residence in the jurisdiction of England and Wales within the meaning of s 265(2)(b)(i) of the Insolvency Act 1986 (IA 1986) or had carried on business in the jurisdiction within the meaning of IA 1986, s 265(2)(b)(ii) as the petitioners claimed in the petition. The debtor, who was in the USA, had denied both by his notice of opposition and in his evidence. The court held... View
The Chancery Court ruled on the bankruptcy petition brought by the petitioners against the debtor, the director of a wound-up company. The sole issue before the court was whether it had jurisdiction to make a bankruptcy order, specifically whether at any time in the period of three years ending with the date of presentation of the petition the debtor had either had a place of residence in the jurisdiction of England and Wales within the meaning of s 265(2)(b)(i) of the Insolvency Act 1986 (IA 1986) or had carried on business in the jurisdiction within the meaning of IA 1986, s 265(2)(b)(ii) as the petitioners claimed in the petition. The debtor, who was in the USA, had denied both by his notice of opposition and in his evidence. The court held... View
Frosdick v Official Receiver (26 May 2023)
The King's Bench Division dismissed an application to set aside an extended civil restraint order (the ECRO). The applicant had instructed solicitors to represent him in a personal injury claim and, following the solicitors' termination of the conditional fee agreement, a bankruptcy order had been made against the applicant, concerning unpaid legal fees. The applicant had made several applications to the County Court to set aside the bankruptcy order which had been dismissed, as totally without merit. His applications against the trustee in bankruptcy (F) had also been dismissed, and, notwithstanding that three ECROs had been made against the applicant, he had issued a further application notice, seeking permission to bring a fresh claim against the respondent Official Receiver (the OR) and F, concerning 'allegations of breach of duty in the managing of his bankruptcy'... View
The King's Bench Division dismissed an application to set aside an extended civil restraint order (the ECRO). The applicant had instructed solicitors to represent him in a personal injury claim and, following the solicitors' termination of the conditional fee agreement, a bankruptcy order had been made against the applicant, concerning unpaid legal fees. The applicant had made several applications to the County Court to set aside the bankruptcy order which had been dismissed, as totally without merit. His applications against the trustee in bankruptcy (F) had also been dismissed, and, notwithstanding that three ECROs had been made against the applicant, he had issued a further application notice, seeking permission to bring a fresh claim against the respondent Official Receiver (the OR) and F, concerning 'allegations of breach of duty in the managing of his bankruptcy'... View
Re Lloyds British Testing Ltd (in liquidation) Manolete Partners plc v White (22 May 2023)
The Chancery Division dismissed the respondent's application for permission to appeal the trial courts substantive decision that proposed to make an order that had required the respondent to give written notice to the pension scheme trustees requesting, so far as necessary, for all of his remaining pension fund to be designated as a drawdown pension fund, exercising such rights as he would have to draw down the entire fund, and directing that payment be made to a nominated UK bank account, denominated in sterling, in the name of the respondent, and previously notified in writing to the applicant. The respondent alleged that the misfeasance, and the purchase of the property, were wholly unrelated, either factually or in point of time. Further, that if one looked at the position of someone who had funded the pension themselves... View
The Chancery Division dismissed the respondent's application for permission to appeal the trial courts substantive decision that proposed to make an order that had required the respondent to give written notice to the pension scheme trustees requesting, so far as necessary, for all of his remaining pension fund to be designated as a drawdown pension fund, exercising such rights as he would have to draw down the entire fund, and directing that payment be made to a nominated UK bank account, denominated in sterling, in the name of the respondent, and previously notified in writing to the applicant. The respondent alleged that the misfeasance, and the purchase of the property, were wholly unrelated, either factually or in point of time. Further, that if one looked at the position of someone who had funded the pension themselves... View
Town and Country Properties (GB) Ltd and others v Patel and others (17 May 2023)
The Chancery Division dismissed an appeal that had arisen from two orders. By the first order, a winding up petition was dismissed in respect of the first respondent, a statutory demand was set aside, and a bankruptcy petition against the third respondent was dismissed due to a dispute about whether the third respondent was a partner of the first respondent, and whether there was a partnership. By the second order, the appellants were ordered to pay the costs of the three respondents. The winding up petition was dismissed because... View
The Chancery Division dismissed an appeal that had arisen from two orders. By the first order, a winding up petition was dismissed in respect of the first respondent, a statutory demand was set aside, and a bankruptcy petition against the third respondent was dismissed due to a dispute about whether the third respondent was a partner of the first respondent, and whether there was a partnership. By the second order, the appellants were ordered to pay the costs of the three respondents. The winding up petition was dismissed because... View
Re Nasmyth Group Ltd (28 April 2023)
The Chancery Division refused to sanction a restructuring plan under Pt 26A of the Companies Act 2006 (CA 2006) as a matter of discretion. The applicant company (the company) applied for an order for directions for the convening and conduct of meetings of certain company creditors (the plan meetings) to consider and (if appropriate) approve a restructuring plan (the plan). A convening order allowed the company to convene plan meetings to consider and (if appropriate) approve the plan. The plan was approved by a majority of all other classes of creditors apart from the preferential creditor class, of which the sole member was HMRC. The company applied to the court to sanction the plan and order a 'cross-class cram down' in respect of HMRC. Three creditors opposed sanction of the plan... View
The Chancery Division refused to sanction a restructuring plan under Pt 26A of the Companies Act 2006 (CA 2006) as a matter of discretion. The applicant company (the company) applied for an order for directions for the convening and conduct of meetings of certain company creditors (the plan meetings) to consider and (if appropriate) approve a restructuring plan (the plan). A convening order allowed the company to convene plan meetings to consider and (if appropriate) approve the plan. The plan was approved by a majority of all other classes of creditors apart from the preferential creditor class, of which the sole member was HMRC. The company applied to the court to sanction the plan and order a 'cross-class cram down' in respect of HMRC. Three creditors opposed sanction of the plan... View
Re. Al Saud; Al Saud v Mobile Telecommunications Company KSCP (18 May 2023)
The Chancery Division held that, applying settled principles and the lower standard of proof, the respondent company (MTC) had shown a good arguable case, on the evidence, that the applicant debtor, who was a member of the Saudi royal family, had had a place of residence in England during the relevant period, and that MTC had demonstrated 'a good reason' to authorise service on the debtor out of the jurisdiction and by alternative methods for the purposes of CPR 6.15(1), both as at the date of the service order and at all material times since. The court so ruled in circumstances where: (i) MTC had presented a bankruptcy petition against the debtor... View
The Chancery Division held that, applying settled principles and the lower standard of proof, the respondent company (MTC) had shown a good arguable case, on the evidence, that the applicant debtor, who was a member of the Saudi royal family, had had a place of residence in England during the relevant period, and that MTC had demonstrated 'a good reason' to authorise service on the debtor out of the jurisdiction and by alternative methods for the purposes of CPR 6.15(1), both as at the date of the service order and at all material times since. The court so ruled in circumstances where: (i) MTC had presented a bankruptcy petition against the debtor... View
Re Great Annual Savings Company Ltd (16 May 2023)
The Chancery Division dismissed an application by the applicant company for an order sanctioning a restructuring plan (the plan) under Part 26A of the Companies Act 2006. Meetings had been held with 15 classes of creditor, 12 of which achieved 100% support, one of which received no attendance, and in two of which, the majority voted against the plan. There was no power to sanction the plan under section 901F of the Act, as it required the support of all creditor classes by a 75% majority. Accordingly, the plan could only be sanctioned if the requirements of section 901G of the Act were satisfied. It was accepted that condition B of section 901G was satisfied. The principal challenge in condition A was... View
The Chancery Division dismissed an application by the applicant company for an order sanctioning a restructuring plan (the plan) under Part 26A of the Companies Act 2006. Meetings had been held with 15 classes of creditor, 12 of which achieved 100% support, one of which received no attendance, and in two of which, the majority voted against the plan. There was no power to sanction the plan under section 901F of the Act, as it required the support of all creditor classes by a 75% majority. Accordingly, the plan could only be sanctioned if the requirements of section 901G of the Act were satisfied. It was accepted that condition B of section 901G was satisfied. The principal challenge in condition A was... View
Re Mittal (a bankrupt) (24 April 2023)
The Chancery Division allowed the appellant trustee's appeal against an order striking out the trustee's application to suspend the discharge from bankruptcy of the respondent (M). An order would be made in the form originally sought at the substantive hearing before the judge, subject to certain appropriate conditions. View
The Chancery Division allowed the appellant trustee's appeal against an order striking out the trustee's application to suspend the discharge from bankruptcy of the respondent (M). An order would be made in the form originally sought at the substantive hearing before the judge, subject to certain appropriate conditions. View
Hunt (as provisional liquidator of Black Capital) v Ubhi (19 April 2023)
The Court of Appeal, Civil Division, allowing the appeal against a decision continuing a freezing injunction against the appellant granted in favour of the respondent provisional liquidator, held that the judge had erred by not keeping in mind the need for the respondent to justify a departure from the default position that an applicant for an interim freezing injunction had to give an unlimited cross-undertaking in damages. View
The Court of Appeal, Civil Division, allowing the appeal against a decision continuing a freezing injunction against the appellant granted in favour of the respondent provisional liquidator, held that the judge had erred by not keeping in mind the need for the respondent to justify a departure from the default position that an applicant for an interim freezing injunction had to give an unlimited cross-undertaking in damages. View
Re Hussain a bankrupt (10 March 2023)
The Chancery Division stayed an application by the joint trustees in bankruptcy of Mr H, in which they applied for the sale of the family home of Mr and Mrs H for the purposes of the bankruptcy, as 50% beneficial owners. The court held that the trustees had not proved on the balance of probability that the transaction had been at an undervalue. Mrs H's oral evidence that there had been an agreement at the date of the letter resulting in good consideration for the release could not be rejected. View
The Chancery Division stayed an application by the joint trustees in bankruptcy of Mr H, in which they applied for the sale of the family home of Mr and Mrs H for the purposes of the bankruptcy, as 50% beneficial owners. The court held that the trustees had not proved on the balance of probability that the transaction had been at an undervalue. Mrs H's oral evidence that there had been an agreement at the date of the letter resulting in good consideration for the release could not be rejected. View
Re Central Properties Holdings Ltd (in administration) (14 April 2023)
The Chancery Division declined to make an order providing for the discharge from liability of the administrators of a company, conditional upon the termination of the administration on successful completion of the company's Company Voluntary Arrangement (CVA). The relief sought formed part of an application in which the administrators had sought an extension of their term of office and was said to be aimed at avoiding the costs of having to later bring a further application for an order to end the administration. The court was therefore invited to make a prospective conditional order providing for the administration to terminate automatically... View
The Chancery Division declined to make an order providing for the discharge from liability of the administrators of a company, conditional upon the termination of the administration on successful completion of the company's Company Voluntary Arrangement (CVA). The relief sought formed part of an application in which the administrators had sought an extension of their term of office and was said to be aimed at avoiding the costs of having to later bring a further application for an order to end the administration. The court was therefore invited to make a prospective conditional order providing for the administration to terminate automatically... View
Re JD Group Ltd in liquidation (JD Group); Bhatia v Purkiss (as liquidator of JD Group Ltd) (3 April 2023)
The Chancery Division dismissed the appellant's appeal against a finding of the deputy judge that the appellant had been a knowing party to the carrying on of the business of the company with intent to defraud a creditor by causing it to participate in a Missing Trader Intra Community (MTIC) VAT fraud transaction, and was liable to contribute to the company's assets, pursuant to s 213 of the Insolvency Act 1986. The judge also found that the participation in the fraud during that period, and the submission of a VAT return for that period claiming VAT input credits, had been a fraudulent breach of his duty. The court held that, among other things, the appeal sought to overturn an evaluative decision of the judge reached on the basis of unappealed (and unappealable) findings of primary fact, and the appellant had not brought himself within any of the established mechanisms for succeeding in such a challenge. View
The Chancery Division dismissed the appellant's appeal against a finding of the deputy judge that the appellant had been a knowing party to the carrying on of the business of the company with intent to defraud a creditor by causing it to participate in a Missing Trader Intra Community (MTIC) VAT fraud transaction, and was liable to contribute to the company's assets, pursuant to s 213 of the Insolvency Act 1986. The judge also found that the participation in the fraud during that period, and the submission of a VAT return for that period claiming VAT input credits, had been a fraudulent breach of his duty. The court held that, among other things, the appeal sought to overturn an evaluative decision of the judge reached on the basis of unappealed (and unappealable) findings of primary fact, and the appellant had not brought himself within any of the established mechanisms for succeeding in such a challenge. View
Carton-Kelly (as liquidator of CGL Realisations Ltd) v Darty Holdings SAS (3 April 2023)
The Chancery Division made orders in proceedings arising from the liquidation of the Comet Group. The court had ordered that certain payments had constituted an unlawful preference. In the present proceedings, the court held that a portion of the judgment sum paid into court pursuant to an order dated 19 December 2022 was to be paid out. Further, the court held that no non-party would be allowed to view the JPI policy in the court file without order of the court, such order only to be made on application with notice to the parties. View
The Chancery Division made orders in proceedings arising from the liquidation of the Comet Group. The court had ordered that certain payments had constituted an unlawful preference. In the present proceedings, the court held that a portion of the judgment sum paid into court pursuant to an order dated 19 December 2022 was to be paid out. Further, the court held that no non-party would be allowed to view the JPI policy in the court file without order of the court, such order only to be made on application with notice to the parties. View
Kayes v Lees (31 March 2023)
The King's Bench Division ruled that a creditor did not have a legitimate right to proceed with enforcement of a judgment without having to face the risk that the debtor would seek, and might be granted, a moratorium because such an order would seek to constrain the rights of the debtor, as given to him or her by Parliament under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020, SI 2020/1311 (the Regulations), in a way that was not permitted by the Regulations. Accordingly, the court dismissed the applicant creditor's application to extend the period of an injunction granted to restrain the respondent debtor from making an application to a debt advisor for a mental health crisis moratorium... View
The King's Bench Division ruled that a creditor did not have a legitimate right to proceed with enforcement of a judgment without having to face the risk that the debtor would seek, and might be granted, a moratorium because such an order would seek to constrain the rights of the debtor, as given to him or her by Parliament under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020, SI 2020/1311 (the Regulations), in a way that was not permitted by the Regulations. Accordingly, the court dismissed the applicant creditor's application to extend the period of an injunction granted to restrain the respondent debtor from making an application to a debt advisor for a mental health crisis moratorium... View
Re LLoyds British Testing Ltd (in liquidation) Manolete Partners plc v White 2023 All ER (D) 47 (Mar). (16 March 2023)
The Chancery Division held that it could, and should, compel the respondent to draw down his benefits under an occupational pension scheme financed by his employer in order to satisfy an outstanding judgment debt in favour of the assignee of claims for breach of director's duties, brought following the insolvent administration and voluntary liquidation of the employer company. It was appropriate for the court to exercise its jurisdiction to make the order sought. View
The Chancery Division held that it could, and should, compel the respondent to draw down his benefits under an occupational pension scheme financed by his employer in order to satisfy an outstanding judgment debt in favour of the assignee of claims for breach of director's duties, brought following the insolvent administration and voluntary liquidation of the employer company. It was appropriate for the court to exercise its jurisdiction to make the order sought. View
Further Information & Articles
Ben Luxford
Moira FitzpatrickFind INSOLVENCY & RESTRUCTURING ADVICE
R3 members can provide advice on a range of business and personal finance issues. To find an R3 member who can help you, click below.
