The much-anticipated BHS judgment is here.

For those without the time to digest all 533 pages immediately, we have summarised the key points below:

There's been a flurry of regulatory activity in the UK and Europe over the past few weeks. Here's a look at the highlights.

In a case brought by the liquidators, the High Court found two former directors liable for wrongful trading; that is, continuing to trade when they knew or should have known that there was no reasonable prospect of avoiding insolvency (section 214 of the Insolvency Act 1986).

In a recent judgment¹, the High Court determined (contrary to the arguments of the affected secured creditor) that a debenture created a floating charge rather than a fixed charge over certain internet protocol (IP) addresses. Whilst elements of the decision are inevitably fact-specific, some broader lessons and reminders can be taken from the judgment which will be of general relevance to lenders when taking security.

The High Court has handed down judgment against two former directors of a number of BHS group companies. The Joint Liquidators, Anthony Wright and Geoffrey Rowley (both of FRP Advisory) brought claims against Lennart Henningson and Dominic Chandler for wrongful trading, misfeasance trading and individual misfeasance.

Wrongful trading

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FRP Advisory Trading Limited won the United Kingdom's largest-ever wrongful trading claim and successfully established the first "misfeasance trading" claim against former directors of British Home Stores ("BHS"), highlighting the critical responsibilities of directors managing financially troubled company assets.

The market is experiencing almost unprecedented levels of liquidity, across public and private debt and equity capital markets. This is staunching restructuring activity, which might otherwise be expected to rise (not least as pandemic-related government support starts to withdraw). There are also many companies still sponsoring defined benefit pension schemes. The statutory and regulatory landscape in this area has evolved significantly in recent months – with new powers for regulators, and new restructuring tools for debtors.

Case law relating to the potential recharacterisation of fixed charges tends not to come around too often, but the recent case of Re UKCloud Ltd follows (relatively) hot on the heels of the Avanti Communications case, discussed here.

The case background

No, it isn’t. We now have two cases where the Court has confirmed that insolvency practitioners do not need the consent of paid secured creditors when extending an administration under para. 78 of Schedule B1 of the Insolvency Act 1986 (the “Act”).