It is well established that the type of recognition granted by the recognising court under the UNCITRAL Model Law will depend on whether the originating proceedings are ‘foreign main’ or ‘foreign non-main’ proceedings, which in turn hinges on the centre of main interests (COMI) of the insolvent entity.
To no great surprise, the Global Corporate v Hale appeal decision has gone against the director. The Court of Appeal handed down the eagerly awaited judgment on 27 November 2018.
In our recent article on restructuring options for retail businesses, we outlined how a number of companies in that sector had implemented or were considering Company Voluntary Arrangements (CVAs).
Directors against whom claims for a misfeasance have been intimated often turn to limitation and set off in defence of a request for the repayment or restoration of the relevant sums or property.
Misfeasance and limitation
While overall insolvencies fell in number in 2017 compared with 2016, the last quarter of 2017 showed an increase compared with the previous quarters which had been stable.
In those insolvencies, the vast majority are voluntary liquidations, but there is a trend of retail businesses which are struggling turning to the Company Voluntary Arrangement restructuring option, often accompanied by a managed reduction in operations.
This article was first published in The Gazette, and the original article can be found online here.
The implementation of the Insolvency Rules 2016 has introduced a number of changes to the procedures in insolvency regimes.
Any business owner will know the importance of consistent cash flow to the success of their business. On 1 October 2017, a new Pre-Action Protocol for Debt Claims will come into force. The new Protocol will make the process of claiming debts from unwilling debtors slower and more onerous for creditors as a new mandatory process before a claim can be issued is required, with longer timescales. It also aims to avoid court proceedings wherever possible, firmly encouraging parties to engage in alternative forms of dispute resolution.
The Recast Insolvency Regulation (Regulation 2015/848) (“Recast Regulation”) will apply to all member states of the EU (with the exception of Denmark) in relation to insolvency proceedings opened on or after 26 June 2017. The Recast Regulation takes a similar approach to that of the prior EU Insolvency Regulation (Regulation 1346/2000), which came into force in 2002. The Recast Regulation seeks to create a uniform code for insolvency jurisdiction, and cross-border recognition (within the acceding Member States).
On 2 March Cambridgeshire-based merchant WellGrain went into administration, reportedly owing at least £15m to almost 300 creditors, many of those being farmers.
The administrators' report has now been published and indicates that the unsecured creditors - including some 155 farmers - will expect to receive between 1.4 - 6.7 pence for every pound they are owed.
It is an announcement which will no doubt be met with dismay by those creditors. However, it is not unusual that unsecured creditors of an insolvent company will receive little or no payment.
In a judgment that will undoubtedly impact what has become fairly common practice when filing notices of intention to appoint an administrator (“NOITA”), the Court of Appeal has held in JCAM Commercial Real Estate Property XV Ltd v Davis Haulage Ltd[1] that a company seeking to give notice of intention to appoint under paragraph 26 of Schedule B1 to the Insolvency Act 1986 (the “Act”), and to file a copy o