Is a limited recourse agreement no longer an effective weapon against winding-up? – 11 Stone Buildings

Posted March 26th, 2014 in consumer credit, EC law, insolvency, news, winding up by sally

‘This article questions the decision in ARM Asset-Backed Securities S.A. [2013] EWHC 3351 CH which found that a company was insolvent despite a contractual limited recourse provision which provided that the company was not liable to pay its bondholders more than its available funds.’

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11 Stone Buildings, February 2014

Source: www.11sb.com

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In re Lehman Brothers International (Europe) (in administration) (No 4) – WLR Daily

Posted March 18th, 2014 in banking, insolvency, law reports by tracey

In re Lehman Brothers International (Europe) (in administration) (No 4):[2014] EWHC 704 (Ch);  [2014] WLR (D)  132

‘Determination of issues raised in the administration of three companies as to the potential liability of two members in the group for the liabilities of the principal trading company, an unlimited company, and in particular its subordinated liabilities, and the relationship between their liability, if any, as members and their claims as creditors.’

WLR Daily, 14th March 2014

Source: www.iclr.co.uk

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“Game, set but not quite match” following the C of A decision re rents in administration – 11 Stone Buildings

Posted March 10th, 2014 in administrators, expenses, insolvency, leases, news, rent by sally

‘Many commercial landlords will be delighted with the Court of Appeal’s unanimous decision in Jervis v Pillar Denton Limited (Game Station) and Others [2014] EWCA Civ 180, overruling the decisions in Goldacre and Luminar. The Court of Appeal held that, applying the Lundy Granite principle, the question of whether quarterly rent due under a lease was an administration expense or a provable debt depended not on whether the rent fell due during the period of the administration, but whether the property had been used for the benefit of the administration. Sarah Clarke gives the background to these cases, sets out the Game appeal decision and highlights its consequences as well as the real concerns for officeholders.’

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11 Stone Buildings, February 2014

Source: www.11sb.com

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Jervis and others v Pillar Denton Ltd (Game Station) and others – WLR Daily

Posted February 28th, 2014 in administrators, expenses, insolvency, law reports, rent by sally

Jervis and others v Pillar Denton Ltd (Game Station) and others [2014] EWCA Civ 180 ; [2014] WLR (D) 94

‘In the context of insolvency, where rent was payable in advance the office holder should make payments at the rate of the rent for the duration of any period during which he retained possession of the demised property for the benefit of the winding up or administration. The rent would be treated as accruing from day to day. Those payments were payable as expenses of the winding up or administration. The duration of the period was a question of fact and was not determined merely by reference to which rent days occurred before, during or after that period.’

WLR Daily, 24th February 2014

Source: www.iclr.co.uk

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Marks & Spencer plc v Revenue and Customs Commissioners (No 2) – WLR Daily

Posted February 28th, 2014 in corporation tax, EC law, insolvency, law reports, subsidiary companies by sally

Marks & Spencer plc v Revenue and Customs Commissioners (No 2) [2014] UKSC 11; [2014] WLR (D) 90

‘A company was entitled to make successive claims to cross-border group relief against corporation tax in relation to the same loss incurred in the same accounting period by a European subsidiary which had gone into liquidation and then to withdraw any earlier claims in respect of the same surrendered loss which did not meet the subsequent judicially determined test, subject to the claim ultimately relied upon not being statute-barred.’

WLR Daily, 19th February 2014

Source: www.iclr.co.uk

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Landlords win legal battle over Game – Daily Telegraph

Posted February 25th, 2014 in appeals, insolvency, landlord & tenant, news, rent by sally

‘Court of Appeal ruling gives high street landlords more protection in administrations’

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Daily Telegraph, 24th February 2014

Source: www.telegraph.co.uk

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Insolvency practitioners to be prevented from charging by the hour under new proposals – OUT-LAW.com

‘Administrators and other insolvency practitioners (IPs) could be prevented from charging an hourly rate for their services and could instead have to base their fees on a percentage of property dealt with under plans put forward for consultation by the Government.’

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OUT-LAW.com, 19th February 2014

Source: www.out-law.com

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Mind your step – New Law Journal

Posted February 6th, 2014 in insolvency, insurance, law firms, legal services, news, solicitors by sally

‘Simon Love provides a warning to firms facing financial difficulty.’

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New Law Journal, 5th February 2014

Source: www.newlawjournal.co.uk

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Guarantor was released from obligations when alterations to property were made without its consent, Appeal Court confirms – OUT-LAW.com

Posted January 24th, 2014 in insolvency, landlord & tenant, leases, news, rent, surety by sally

‘The guarantor of an insolvent commercial tenant cannot be held liable for outstanding obligations if changes were made to the lease without its consent which had the “potential” to increase the burden on the guarantor, the Court of Appeal has confirmed.’

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OUT-LAW.com, 23rd January 2014

Source: www.out-law.com

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Schmid v Hertel – WLR Daily

Posted January 20th, 2014 in assets recovery, EC law, insolvency, jurisdiction, law reports by sally

Schmid v Hertel (Case C-328/12); [2014] WLR (D) 5

‘Under article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, the courts of the member state within the territory of which insolvency proceedings had been opened had jurisdiction to hear and determine an action to set a transaction aside by virtue of insolvency that was brought against a person whose place of residence was not within the territory of a member state.’

WLR Daily, 16th January 2014

Source: www.iclr.co.uk

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Corporate failure and its implications for professionals advising before insolvency – 11 Stone Buildings

Posted December 12th, 2013 in accountants, insolvency, negligence, news, professional conduct, solicitors by sally

‘Professional negligence cases frequently deal with claims that arise after an insolvency occurs. During a recent 11 SB insolvency seminar, Lexa Hilliard QC focused on problems that can arise for accountants and solicitors prior to a company entering into a formal insolvency process. This is an area that has attracted little attention but it can be full of pitfalls that we professionals ignore at our peril. In
this ‘Insider’ she summarises herthoughts on what is becoming a very topical issue.’

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11 Stone Buildings, December 2013

Source: www.11sb.com

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Gomes Viana Novo and others v Fundo de Garantia Salarial IP (Wage Guarantee Fund) – WLR Daily

Posted December 4th, 2013 in EC law, employment, enforcement, insolvency, law reports, remuneration by sally

Gomes Viana Novo and others v Fundo de Garantia Salarial IP (Wage Guarantee Fund) (Case C‑309/12); [2013] WLR (D) 465

‘Council Directive 80/987/EEC of 20 October 1980 relating to the protection of employees in the event of the insolvency of their employer (as amended by Parliament and Council Directive 2002/74/EC of 23 September 2002) did not preclude national legislation which did not guarantee wage claims falling due more than six months before the commencement of an action seeking a declaration that the employer was insolvent, even where the workers initiated, prior to the start of that period, legal proceedings against their employer with a view to obtaining a determination of the amount of those claims and an enforcement order to recover those sums.’

WLR Daily, 28th November 2013

Source: www.iclr.co.uk

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Court of Appeal clarifies “lawsuits pending” in Art 32 of EC Directive 2001/24 on Reorganisation and Winding Up of Credit Institutions – 11 Stone Buildings

Posted December 3rd, 2013 in appeals, EC law, foreign jurisdictions, insolvency, news, winding up by sally

‘In a judgment handed down today (Isis Investments Ltd v Kaupthing Bank h.f. & Elfar Adalsteinsson [2013] EWCA Civ 1493), the Court of Appeal has clarified the meaning and scope of “lawsuits pending” in Article 32 of the EC Directive on the Reorganisation and Winding Up of Credit Institutions (Directive 2001/24/EC). Charles Samek QC who acted for the successful respondent, Mr Adalsteinsson (acting as a representative party on behalf of high net-worth investors) explains the significance of the judgment.’

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11 Stone Buildings, 27th November 2013

Source: www.11sb.com

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Anti-suit injunctions, arbitrations and cross-border insolvency – 11 Stone Buildings

“Ironically, the recent developments in international law which have encouraged the recognition of foreign insolvency proceedings and assistance in relation to them have in many cases led to disharmony between our domestic law and the law of the foreign proceedings. The applicable principles on when it is appropriate to grant anti-suit injunctions to protect the right of a party not to be sued in a foreign state have not been worked out fully in relation to insolvency. This is nowhere more apparent than where a foreign debtor enters a foreign insolvency process and prior to the insolvency was party to an agreement containing an English arbitration clause.”

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11 Stone Buildings, November 2013

Source: www.11sb.com

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Smith-Evans v Smailes – WLR Daily

Posted November 8th, 2013 in bankruptcy, individual voluntary arrangements, insolvency, law reports by tracey

Smith-Evans v Smailes: [2013] EWHC 3199 (Ch);   [2013] WLR (D)  423

“Where the chairman of a creditors’ meeting summoned under section 257 of the Insolvency Act 1986 had reported the meeting’s approval of a proposed voluntary arrangement to the court, the only route of challenge was under section 262 of the 1986 Act. That was so even if the meeting itself had not approved the arrangement, because the chairman had exceeded the terms of proxies that he held so there had in fact not been a 75% majority in favour of approval.”

WLR Daily, 29th July 2013

Source: www.iclr.co.uk

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Closegate Hotel Development (Durham) Ltd and another v McLean and others – WLR Daily

Posted October 30th, 2013 in administrators, insolvency, law reports by sally

Closegate Hotel Development (Durham) Ltd and another v McLean and others [2013] EWHC 3237 (Ch); [2013] WLR (D) 409

“The prohibition on an officer of a company in administration exercising a management power absent the consent of the administrators contained in paragraph 64 of Schedule B1 to the Insolvency Act 1986, as inserted, did not deprive the directors of a company of the authority to cause the company to challenge the validity of the appointment of the administrators, nor was the exercise of such authority dependent upon the provision by the directors of an indemnity for costs.”

WLR Daily, 25th October 2013

Source: www.iclr.co.uk

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Breaking news for astrophysicists: Black holes can collapse – Hardwicke Chambers

Posted September 25th, 2013 in costs, debts, insolvency, landlord & tenant, news, pensions, Supreme Court by sally

“OK, so the title perhaps implies that what follows is more interesting than it is. However, the most recent decision of the Supreme Court in the Nortel/Lehman litigation is of considerable importance for all of us, particularly in the current economic climate.”

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Hardwicke Chambers, 23rd September 2013

Source: www.hardwicke.co.uk

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Van Buggenhout and another v Banque Internationale à Luxembourg SA – WLR Daily

Posted September 23rd, 2013 in debts, EC law, foreign companies, foreign jurisdictions, insolvency, law reports by sally

Van Buggenhout and another v Banque Internationale à Luxembourg SA (Case C-251/12); [2013] WLR (D) 353

“A payment made at the behest of debtor subject to insolvency proceedings to one of the latter’s creditors did not fall within the scope of article 24(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings. That provision enabled a person who honoured an obligation ‘for the benefit of’ a debtor, who was subject to insolvency proceedings opened in another member state , when it should have been honoured for the benefit of the liquidator, to be deemed to have discharged it if he was unaware of the opening of proceedings.”

WLR Daily, 19th September 2013

Source: www.iclr.co.uk

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In re MF Global UK Ltd (No 4) (in special administration); Heis and others v Attestor Value Master Fund LP and another – WLR Daily

Posted September 2nd, 2013 in administrators, breach of trust, contracts, insolvency, law reports by sally

In re MF Global UK Ltd (No 4) (in special administration); Heis and others v Attestor Value Master Fund LP and another [2013] EWHC 2556 (Ch); [2013] WLR (D) 339

“For the purposes of the client money rules and the client money distribution rules contained in the Client Assets Sourcebook, CASS 7 and 7A a client’s contractual claim and the amount for which it might prove in respect of such claim fell to be reduced by the amount of any actual or anticipated distribution from the client money pool. The client could not prove for both a claim resulting from a shortfall in the client money trust and the balance of its contractual claim where the shortfall claim did not exceed the contractual claim. However, the rule against double proof did not prevent a claim by a client in respect of a shortfall in payment of its client money entitlement to the extent that it exceeded its contractual claim or in a case where the client had no contractual claim.”

WLR Daily, 16th August 2013

Source: www.iclr.co.uk

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Separate extensions to software licensing deal transferred in liquidation deemed valid and invalid by High Court – OUT-LAW.com

Posted August 20th, 2013 in computer programs, contracts, insolvency, licensing, news, time limits by tracey

“A software licensing arrangement transferred as a result of a voluntary liquidation continued to apply for six months beyond the end of the initial contract period but an additional longer extension to that contract could not be implied, the High Court has ruled.”

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OUT-LAW.com, 20th August 2013

Source: www.out-law.com

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