It’s hard to write a pithy article about the transfer of proceedings from the High Court in London to the Central London County Court (CLCC), but given its wide-reaching implications I thought it was worth a try.

The High Court has approved a £3bn rescue package for Thames Water to plug the leak in the water company's finances while it seeks to secure a wider restructuring deal. This is stage one in Thames Water's plan to restructure its £19bn debt mountain and secure £5bn in equity investment, with the initial cash injection urgently required to service £200m of debt which falls due on 24 March.

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

How to keep your head above water in the face of economic uncertainty, as told by Lucy Trott, Senior Associate, Stevens & Bolton.

Businesses in turmoil dominate the financial press. That depiction of financial distress is supported by monthly figures which make plain that the financial legacy of the Covid-19 pandemic is an increasing number of insolvencies. It is a trend which does not show any sign of abating.

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.

Boris Becker was originally made bankrupt in June 2017. In the ordinary course, a debtor is made bankrupt for a period of one year, and upon the anniversary of the bankruptcy order they are automatically discharged. While a bankrupt is undischarged, they are subject to various restrictions e.g. they are unable to act as company director or be involved in the management, promotion or formation of a business. Once discharged, the debtor can (in theory) start to rebuild their life afresh while their pre-bankruptcy assets remain in the hands of their trustee in bankruptcy (the Trustee).

In the recent case of Loveridge v Povey and Ors [2024] EWHC 329 (Ch) a company shareholder sought to challenge the administrators’ decision to rescue a balance sheet solvent company as a going concern by securing additional funding, as opposed to pursuing a sale of the business.

Background

随着社会发展与商业模式的不断丰富，不同商事主体之间会因愈发复杂的交易往来产生繁多的债权债务关系，整体经济环境下行、转入逆周期的情况下，债务危机频频爆发，债务重组已成为债务危机化解的一种重要方式，而债务重组能否成功的关键因素取决于是否存在契合企业、债权人、投资人甚至政府或监管机关要求的重组方案，故债务重组方案的设计是债务重组的重中之重。本文结合相关项目经验，对债务重组方案设计的总体思路及流程，以及中介机构在重组方案设计时的角色作用提出探讨，以期更好地促进债务重组工作之推进。

一、重组范围

Thames Water is making waves once again with renewed discussion around a potential special administration for the beleaguered water company. We wrote last year about reports that the government and Ofwat were making contingency plans for Thames Water after its failure to raise shareholder funding to bridge a funding gap with nearly £1.4bn of its borrowings due to mature this year.

2018年以来，选择以庭外重组方式化解债务风险的大型民营企业逐渐变多，同时在实践中，为了固化庭外债务重组协议之效力，越来越多企业根据自身需要，寻求以庭外重组与庭内重组相结合的、综合性化解债务危机的路径。在这样的现实背景下，对庭外债务重组与庭内重组程序的衔接及组合运用进行研究便显得十分必要了。本文将结合我国相关政策规定和案例实践，探讨庭外债务重组与庭内重组程序衔接的合理性、可行性以及两者进行衔接的模式。

一、庭外重组与庭内重组程序的现实需求

庭外重组与庭内重组（包括破产重整和破产和解）均为化解债务风险的路径。庭内重组通过破产法规定及司法权力介入等形式，赋予了重整计划或和解协议“多数决”的强制约束力，以及解封解押等的强制执行力。但庭外重组实质是债务人与主要债权人私下自愿协商，或者在中立第三人主持下达成债务调整合意的过程，达成的合意不具有司法强制执行力。