The High Court recently in an ex tempore (unwritten) judgment (to be followed by a more detailed written judgment) approved a scheme of arrangement under Part 9 of the Companies Act 2014 in what may be a template for future restructurings in the aviation sector and a further example, following on from the Weatherford and Ballantyne cases, of the Irish courts’ willingness to facilitate large international restructurings.

The case concerned the Nordic Aviation group, the largest regional aircraft lessor and the fifth largest aircraft lessor globally.

Ipso facto provision introduced to UK insolvency landscape by the Corporate Insolvency and Governance Act 2020 (“the 2020 Act”).

On 26 June 2020 the Corporate Insolvency and Governance Act 2020 (“the 2020 Act”) finally entered into force. Now it is in its final form, Simon Newman and Christopher Pask of 1 Chancery Lane’s Commercial, Chancery and Property team will be providing their views on its provisions and their impact over a series of updates.

The first half of 2020 saw a wave of company voluntary arrangements (CVAs) as companies explored their restructuring options against the backdrop of a darkening economic outlook.

In March 2020, Business Secretary Alok Sharma announced that provisions on wrongful trading would be suspended. The move came as part of a wider package of measures that sought to provide assistance to businesses – and their beleaguered boards – experiencing financial distress due to Covid-19.

Now set out in the Corporate Insolvency and Governance Act 2020 (CIGA), which was passed on 26 June 2020, the provisions adapt the wrongful trading regime making directors’ liability for the “relevant period” unlikely.

Why does it matter?

The Corporate Insolvency and Governance Act ("the Act") came into expedited effect on 26 June 2020 and is intended to maximise the chance of corporate survival and reduce the threat of personal liability on directors during this unprecedented economic crisis.

D&O insurers should be clear about one thing: this Act will not help them and in fact it could well make things worse.

The Act

It is an unfortunate reality that the number of insolvencies in the construction sector seems certain to rise in coming months as the economic impact of COVID-19 takes effect. In this context, the recent Supreme Court decision in Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25 is particularly relevant.

This case concerned important questions regarding the compatibility of two statutory regimes:

The UK's Supreme Court ("UKSC") has handed down its judgment following the hearing of the appeal in the case of Sevilleja v Marex Financial Limited [2020] UKSC 31 ("Marex"). The appeal was against the decision of the Court of Appeal to find that the rule of reflective loss applied to 90% of Marex's claim, which was brought in its capacity as a creditor.

The appeal was unanimously allowed by UKSC and it confirmed the rule did not extend to creditors.

On 4 June 2020, a draft of The Insolvency Act 1986 (HMRC Debts: Priority on Insolvency) Regulations 2020 was provided to the Public Bill Committee. The Regulations are due to come into force on 1 December 2020.

The draft Regulations set out the debts due to HMRC that will have ‘secondary’ preferential status in insolvencies from 1 December 2020. They are debts in respect of PAYE income tax, employee NICs, construction industry scheme deductions and student loan repayments. VAT debts are to be treated in the same way, though are not covered by these draft Regulations.

The court held in this case that a costs order in favour of the debtor, in respect of a discontinued bankruptcy petition for the same debt, due to the petitioner, could be set off against the sums due in respect of a second bankruptcy petition brought against the debtor by the same petitioner. The debtor had argued that the petition should be stayed until the previous costs order had been paid.

Introduction

With grimly apposite timing, in June, the Supreme Court gave its decision in Bresco Electrical Services Ltd (in Liquidation) v Michael J Lonsdale (Electrical) Ltd and turned on its head the construction industry’s understanding of an insolvent company’s right to pursue an adjudication. It will fundamentally affect construction insolvencies.