A recent Court of Appeal decision has criticised obiter comments made by the Supreme Court in Bresco v Lonsdale to the effect that adjudication decisions in favour of companies in liquidation could in certain circumstances, and with appropriate safeguards, be enforced by way of summary judgment. The Court of Appeal has indicated that such an approach would be at odds with the mandatory right of set-off arising under the Insolvency Rules. The Court of Appeal’s comments in this respect are themselves obiter and will give rise to uncertainty in this area of the law.
A Court of Appeal decision last week has broadly upheld previous TCC guidance as to the ability of companies in liquidation or those subject to CVAs to commence and enforce adjudication proceedings against their creditors. Although theoretically possible, adjudication proceedings commenced by companies in liquidation are now liable to be restrained by a court injunction. Adjudications by companies subject to a CVA are more likely to be appropriate and, depending on the circumstances, may be enforced without a stay of execution.
Insolvency set-off: a recap
Beauty Brands, LLC, along with two subsidiaries and affiliates, has filed a petition for relief under chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 19-10031).
Angel Medical Systems, Inc., a developer of medical devices based in Eatontown, NJ, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 18-12903).
Alcor Energy, LLC filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 18-12839).
White Eagle Asset Portfolio, LP, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12808).
Checkout Holding Corp. (dba Catalina Marketing), along with ten affiliates and subsidiaries, has filed a petition for relief under chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12794).
interTouch Holdings LLC and its affiliate, interTouch TopCo LLC, have both filed petitions for relief under chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12772).
Argos Therapeutics, Inc. (f/k/a Merix Bioscience, Inc.) has filed a petition for relief under chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 18-12714).
Fairway Energy, LP, along with two subsidiaries and affiliates, has filed a chapter 11 petition for relief in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-12684).