Categorisation of a charge as fixed or floating will have a significant impact on how assets are dealt with on insolvency and creditor outcomes.

Typical fixed charge assets include land, property, shares, plant and machinery, intellectual property such as copyrights, patents and trademarks and goodwill.

Typical floating charge assets include stock and inventory, trade debtors, cash and currency, movable plant and machinery (such as vehicles), and raw materials and other consumable items used by the business.

On 23 January 2024, the Court of Appeal handed down its much anticipated judgment[1] on the appeal of the Adler restructuring plan pursuant to Part 26A of the Companies Act 2006 (“RP”), which was sanctioned by the High Court on 12 April 2023

The Court of Appeal has unanimously overturned an unlawful preference ruling from the High Court, finding instead that the repayment of inter-company debt did not amount to a preference because, at the time the operative decision to make the repayment occurred, there was no desire to prefer.

The U.K. Financial Services and Markets Act 2023

In two recent blog posts we discussed the challenge made to the Company Voluntary Arrangement (CVA) of Mizen Build/Design Ltd (the “Company”) by Peabody Construction Limited (“Peabody”) and the finding of (i) a material irregularity based on failure to disclose information to creditors in the CVA proposal, and (ii) unfair prejudice based on vote swamping.

In a previous blog about the case of Mizen we considered the case from the point of view of “guarantee stripping”, looking at how the CVA dealt with those claims. However, the CVA was challenged on a number of bases, including whether it was unfairly prejudicial as a consequence of “vote swamping”.

In this blog, we look at that aspect of the case.

A company voluntary arrangement (CVA) is a tool which has been widely utilised by companies seeking to restructure and compromise liabilities.

In recent years CVAs have been in the limelight because of attacks by landlords who feel that they have been unfairly prejudiced by the CVA terms. Largely, challenges such as those to the Regis and New Look CVAs have been unsuccessful, but arguments about unfair prejudice based on “vote swamping” were left open for future debate.

The U.K. government has published its much-anticipated proposals for regulating the cryptoasset industry. These proposals, currently in the form of a consultation, will see many (but not all) cryptoasset-related activities being brought within the regulatory perimeter for financial services in the U.K.

Introduction

The UK Supreme Court has recently delivered a landmark decision in the case of BTI 2014 LLC v Sequana S.A. [2022] UKSC 25. The decision is of great importance as the Supreme Court considered in detail whether the trigger for the directors’ duty to consider creditors’ interest is merely a real risk, as opposed to a probability of or close proximity to, insolvency.

Background

簡介

英國最高法院最近在BTI 2014 LLC v Sequana S.A. [2022] UKSC 25一案中頒下了重要裁決，其重要之處在於最高法院深入探討了董事考慮債權人權益的責任，是只需出現真正的無力償債風險便已觸發，還是在相當可能或瀕臨無力償債時才觸發。

背景

本案的第二及第三答辯人為AWA公司（「該公司」）的董事。於2009年5月，他們安排該公司向該公司唯一股東（「第一答辯人」）派發1.35億歐元的股息（「該股息」），以抵銷第一答辯人結欠該公司的債務。該公司在支付該股息時，其資產負債表及現金流均處於具償債能力的狀況。然而，該公司有一項與污染相關而金額未定的長期或然負債，導致該公司產生未來可能無力償債的真正風險。