December 2023
The Right of Set-off in Insolvency Proceedings
MAYER BROWN | THE RIGHT OF SET-OFF IN INSOLVENCY PROCEEDINGS
Judgments on claims for fraudulent trading (s 213 Insolvency Act 1986) do not come along every day: they are hard to make good. A recent example is, however, that of Charles Morrison (sitting as a Deputy Judge of the High Court) in Bouchier & Anor v Booth & Anor [2023] EWHC 3195 (Ch). It runs to 281 paragraphs and covers a wide range of law and fact.
The well-publicised restructuring of the Galapagos group (the group) in 2019 spawned multiple challenges by stakeholders in the courts of a number of different jurisdictions. The latest decision of the English High Court considers the interpretation of the Distressed Disposal provision within an LMA-form intercreditor agreement (ICA) following a challenge by subordinated noteholders (the noteholders) to the validity of the release of their claims as part of the wider restructuring.
This article explores the efficacy of the relatively new moratorium procedure introduced under the Corporate Insolvency and Governance Act 2020 and whether the existing domestic legislation already housed a more effective debtor-in-possession rehabilitative procedure in the form of the “light-touch” administration and if so, why it has thus far been largely overlooked.
The government recently published its response to its earlier consultation on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019 or the convention).
In R (on the application of Palmer) v Northern Derbyshire Magistrates' Court [2023] UKSC 38, the Supreme Court has ruled that an administrator appointed under the Insolvency Act 1986 is not an "officer" of the company.
This case considered this issue within the meaning of section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the TULRCA). As a result of the Supreme Court's decision, administrators will not be exposed to potential criminal liability for failing to notify the Secretary of State of collective redundancies.
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In this issue
- Case law updates
- Legislative developments
- Other news
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Recent publications
In the current difficult business environment, lenders will be weighing up their options in respect of defaulting borrowers – for some lenders that might include attempting to own the underlying business through a credit bid. Where debt is trading at a discount, a credit bid can also be a cost-efficient opportunity for an opportunistic buyer to acquire assets. So, what is a credit bid and what issues might such parties need to consider in using one?
What is a credit bid?
Why calculating potential claims under s214 Insolvency Act 1986 can be far from simple
Introduction