In a recent ruling (NMC Health PLC (in Administration) v Ernst & Young LLP [2024] EWHC 2905 (Comm)), the High Court declined to order disclosure of witness statements and transcripts of interviews conducted by administrators during their initial investigations, citing litigation privilege.

Litigation privilege

In March 2015 the major high street retailer British Home Stores (BHS) was acquired for £1 by Retail Acquisitions Limited (RAL), a company owned by Mr Dominic Chappell. Mr Chappell became a director of the BHS entities upon completion of the purchase, together with three other individuals.

What happens to a company at the end of an administration is a question that probably only keeps insolvency anoraks up at night.

There are a limited number of potential options, with the rescue of the company as a going concern being the number one objective to which all administrators aspire. However, more often than not, an administration will end with the company entering liquidation or, where the company has no property to permit a distribution to creditors, the dissolution of the company.

2024年4月，国务院印发了《关于加强监管防范风险推动资本市场高质量发展的若干意见》，明确加大并购重组改革力度，多措并举活跃并购重组市场。资本市场中产业链并购以及跨界并购已然成为上市公司实现产业整合、市场扩张的重要途径之一。本文拟从上市公司重大资产重组角度出发，对可能影响上市公司重大资产重组成功的事项予以探讨。

一、上市公司重大资产重组的界定

上市公司重大资产重组是指上市公司及其控股或者控制的公司在日常经营活动之外的购买、出售资产或者通过其他方式进行资产交易达到规定的标准，导致上市公司的主营业务、资产、收入发生重大变化的资产交易行为。其中资产交易的方式，除了购买、出售资产外，还包括与他人新设企业、对已设立的企业增资或者减资；受托经营、租赁其他企业资产或者将经营性资产委托他人经营、租赁；接受附义务的资产赠与或者对外捐赠资产等。上市公司通常对购买、出售资产是否构成重大资产重组较为熟悉，在与他人新设企业、对已设立的企业增资、受托经营、租赁其他企业资产行为中是否构成重大资产重组问题，因市场案例相对较少，故较为陌生。笔者理解其核心还是在于是否实质构成购买、出售资产的判断。

While franchising has typically been a more robust business model than others, it remains susceptible to broader economic and sectoral pressures, as The Body Shop’s recent entry into administration demonstrates.

In the unfortunate event that a franchisor or franchisee becomes insolvent, disruption is inevitable. However, insolvency doesn’t necessarily spell a terminal outcome. In this article we consider some of the key considerations for both franchisors and franchisees.

Handling franchisee insolvency: the franchisor’s approach

The High Court has handed down an important decision confirming that an unrecognised foreign judgment can be used to form the basis of a bankruptcy petition.

In rejecting the bankrupt’s appeal, the court confirmed that a debt arising pursuant to such a judgment is capable of constituting a “debt” for the purposes of section 267 Insolvency Act 1986 (the Act), despite the fact that the underlying judgment had not been the subject of recognition proceedings in England.

Facts

We find ourselves in a year of transition, with (whisper it) the economy stabilising and an election tipped for the second half of 2024. Surely only a fool, in times such as these, would seek to anticipate what change could unfold in the legal landscape over the next 12 months. Challenge accepted! For 2024 we have dusted off our crystal ball and we set out below our (educated) guesses of what to expect for the year (or two) ahead…

Implementation of UNCITRAL model law on Enterprise Group Insolvency

Summary

In this High Court case ICC Judge Barber ordered a disqualified director to compensate creditors for losses under s15A of the Company Directors' Disqualification Act 1986 (CDDA) as a result of negligent conduct in trading a company illegally.

Facts

As can often be the way, August was a disappointing month for many, with the dull and dreary weather casting a shadow over plans made for the school holidays. So too, it seems, was August a bad month for the business community – perhaps in some cases linked to the weather, with poorer performance by seasonal businesses reliant on fair weather custom.

The curiosity with claims based on transactions defrauding creditors is that a transaction can fall within its scope when a debtor is solvent and may never ultimately enter an insolvency process, and there is no requirement of fraud. Such claims fall under section 423 of the Insolvency Act 1986 (the act), and do require a debtor to have entered into a transaction at an undervalue (drawing on claims under section 238 and 339 of the act, in corporate and personal insolvency respectively) with the intention of putting assets beyond the reach of creditors.