Litigation & Dispute Resolution

The Court of Appeal has decided an important question affecting choices around methods of debt enforcement. In ACC Loan Management v Rickard,1 it looked at whether a receiver by way of equitable execution can be appointed to receive future sums to which the debtor may become entitled.

If a transaction by a company amounts to an "unlawful distribution", and the company subsequently goes into liquidation, will an action for recovery of the benefits of that distribution, brought against the directors who authorised the transaction, be statute-barred if it is commenced by the liquidator of the company more than 6 years after the distribution was made?

The Bankruptcy (Amendment) Act 2015 reduced the normal duration of bankruptcy from three years to one year. Up until December 2013 the standard period had been twelve years - so the reduction was a fundamental change and it was seen as a very "pro-debtor" reform of law, which was also aimed at reducing "bankruptcy tourism".

Extending the Period of Bankruptcy

www.dilloneustace.com April 2018 Recent Cases on Enforcement of Security of interest to Owners and Prospective Purchasers of Irish NPL Portfolios Introduction It is anticipated that a number of significant non-performing loan (NPL) portfolios will be divested by banks operating in the Irish market over the coming year. The likely cost and timing of realising security over secured real estate assets is a significant consideration for potential buyers of NPL portfolios when assessing entry into this market and the pricing of proposed bids.

Can we learn sufficient lessons from Carillion to avoid construction related insolvency closer to home?

1. PUTTING INSOLVENCY ON THE AGENDA

In ACC Loan Management Limited -v- Rickard [2017] IECA 245, the Court of Appeal ruled on two important aspects of the High Court's jurisdiction to appoint a receiver by way of equitable execution over the property of a judgment debtor. In a decision which will assist lending institutions and other creditors in assessing their enforcement options to satisfy outstanding judgments, the Court has eliminated some of the confusion which had existed in Irish law in respect of the circumstances in which a receiver may be appointed by way of equitable execution and has confirmed that:

The Court of Appeal has helpfully confirmed that a judgment creditor can seek an order appointing a receiver by way of equitable execution where:

• the debtor holds a legal or equitable interest in property; and
• execution against the property is not available at law by one of the usual methods, for instance via the sheriff or by a garnishee order.

There was previously doubt as to whether such a receiver could be appointed where the debtor held a legal, as opposed to an equitable interest, in property.

Introduction

On 29 June 2017 the High Court made an order for costs against the three former directors of Custom House Capital (the “Company”) having already disqualified them from acting as directors for periods in excess of ten years. The judgment was unusual because the order for costs was not just in relation to the legal costs but also for the very significant investigative costs of the Official Liquidator.

Background

In May 2017, the Irish Government signed a commencement order giving immediate effect to the ‘Alternative A’ insolvency remedy of the Aircraft Protocol to the Cape Town Convention on International Interests in Mobile Equipment (the Convention). The long-awaited implementation of ‘Alternative A’ gives force of law in Ireland to a regime which is similar to the insolvency regime in the USA, known as Chapter 11 “reorganisation” bankruptcy. The insolvency remedies in the Convention were designed to strengthen creditor’s positions.