The adviser group 2 session on Monday 23 May comprised Owen Clay, corporate lawyer for Arcadia and Traveta (Linklaters); Steve Denison, auditor of Traveta and its subsidiaries, including BHS (PwC); and Anthony Gutman, ‘informal’ adviser to the Arcadia Group (Goldman Sachs).
The questioning focused on the solvency position of BHS at the time of the acquisition, the level of due diligence undertaken on the eventual acquirer (Retail Acquisitions Ltd) and the recognition of the pensions deficit in the deal negotiation.
Monday 23 May saw the turn of the advisers. This update concentrates on what we will call “adviser group 1” comprising Emma King, the trustees pension lawyer (Eversheds); David Clarke, covenants adviser to the trustees (KPMG); Tony Clare, restructuring pensions adviser to Taveta Investments Limited, the previous owner of BHS (Deloitte); Ian Greenstreet, pension lawyer to Taveta Investments Limited (Nabarro); and Richard Cousins, the independent actuary to the Taveta group (PWC).
Key points
- Principles applying to exercise of liquidators’ powers are the same as those prior to legislative changes
- Views of creditors influenced by personal considerations to be disregarded
- The overriding requirement is for liquidators to exercise their professional judgment in the best interests of creditors
The facts
Key Points
- Test for personal service of bankruptcy petition same as for claim forms
- Document to be handed to debtor or contents explained and left “with or near” debtor
- Rule 7.55 can be used to remedy any irregularity in service if necessary
The Facts
Key Points
- Court considers the impact of the Spanish Insolvency Act on guarantees governed by English law
- Court holds that the liability under the guarantee was not extinguished
The Facts
Key Points
- An administrator may be able appeal an order restoring a company following dissolution
- The court has jurisdiction to backdate a winding up order made following restoration to the date of dissolution
- The court must exercise its discretion to do so with extreme caution
The Facts
Client Connection Limited (“Company”) was placed into administration and Ms Sharma (“A”) was appointed as administrator. Following a pre-pack sale of the business of the Company, A moved the Company to dissolution.
Key Points
- Court considers the ownership of assets situated at premises owned by the bankrupt in the context of limited relevant evidence
- Court emphasises the importance of joining the correct parties to litigation
The Facts
Help is at hand for insolvency practitioners (IPs) who need clarification on the Regulator’s views on scheme trustee appointments and statutory notices. The Pensions Regulator recently released a statement intended to assist IPs to understand these two areas which are of particular relevance to them.
TRUSTEES
The statement deals with scheme trustee appointments in four areas:
Key points
- Section 236 (inquiry into company’s dealings) does not have extra-territorial effect
- Section 237(3) (examination) only has extra-territorial effect where appropriate machinery exists in the foreign jurisdiction
- Taking of Evidence Regulation not available where litigation not commenced or contemplated
The facts
Key Point
The mere fact that the law of the country in which an asset is situated does not recognise the trust concept does not necessarily invalidate the trust at least as far as English Courts are concerned.
The Facts