The EAT has confirmed that it is not necessary for the eventual transferee to have been identified in order for an employee, dismissed in the run up to a transfer, to claim automatic unfair dismissal by reason of a relevant transfer under TUPE (Spaceright Europe Ltd v Baillavoine & another).
In its ministerial statement this week in relation to its consultation on the proposals for a restructuring moratorium, the Government has indicated that it now proposes to consider implementing measures to tackle the unreasonable use of termination clauses in insolvencies.
What Are Termination Clauses?
Termination clauses are, of course, found in most commercial agreements and are a means by which a party may terminate an agreement on the occurrence of certain events (invariably including insolvency of the other party).
Introduction
Introduction
This was conclusion of the Court in the case of Nicola Jane Haworth v Donna Cartmel and Revenue & Customs Commissioners. The case was an application by Ms Haworth to annul or rescind a bankruptcy order on the grounds that she lacked capacity when a statutory demand and bankruptcy petition were served on her personally.
Clauses common in syndicated facility agreements were considered and construed in favour of the majority lenders:
-- Strategic Value Master Fund Ltd v Ideal Standard International Acquisition S.A.R.L. (England, High Court, 4 February 2011)
This case involved an examination of clauses common to syndicated facility agreements. The agreement here was based on the LMA standard.
In another case involving administrators, an employment tribunal somewhat controversially has held that the individual administrators could be liable as principals in an agency relationship with employees of a company in administration.
Improved Rights for Unsecured Creditors of Insolvent Companies
In our December 2010 insolvency update, we reported on the UK High Court's decision in BNY Corporate Trustee Services Limited v Eurosail.
In the recent case of BNY Corporate v Eurosail[1], the Court of Appeal for the first time considered how the 'balance sheet' test of corporate insolvency in section 123(2) Insolvency Act 1986 (IA 1986) should be applied.
Section 123(2) IA 1986 provides:-
'A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company's assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.'