The saga of the first Ultra Petroleum Corp. chapter 11 cases appears to have finally come to an end. Numerous articles have been written on the tortured history of whether certain creditors of Ultra Petroleum are entitled to payment of their contractually mandated Make-Whole Amount and default rate of interest.

Yesterday, 17 October 2022, Revenue announced a significant update to the Debt Warehousing Scheme (DWS). Under the DWS, taxpayers with deferred liabilities had until the end of 2022 (and for certain qualifying business, 30 April 2023) to either settle their outstanding liabilities (at 0% interest) or to establish a Phased Payment Arrangement with Revenue (at 3% interest). In light of the current challenging economic environment, Revenue have now extended this deadline to 1 May 2024.

In both jurisdictions the general consensus was that where a company is insolvent, the fiduciary duty of its directors to act in the interest of the company (Irish law), or in the way they consider, in good faith, would be most likely to promote the success of the company in the interests of its members as a whole (English law), altered such that directors were required to treat creditors' interests in priority to shareholders' interests. Directors must consider the interests of creditors as a whole, and not just the interests of any individual creditor or class of creditors.

The UK High Court has ruled that the obligations of third-party guarantors are not affected by a part 26A restructuring plan being sanctioned in respect of the underlying obligations. This approach mirrors the way guarantees are dealt with in a part 26 scheme of arrangement.

The case of Oceanfill Ltd. v Nuffield Health Wellbeing Ltd & Cannons Group Limited examined whether a restructuring plan under part 26A of the Companies Act 2006 (the “Act”) had the effect of releasing liability arising under a third-party guarantee.

Following a long wait of 18 months, the Supreme Court has today confirmed that the appeal of the decision in BTI –v- Sequana is unanimously dismissed.

The key question that many of us have been waiting for the answer to is: Does the creditor duty set out in s172(3) of the Companies Act 2006 exist and if so, when is it engaged?

The Supreme Court has refused permission for the case of Lock v Stanley to be appealed, meaning that the Court of Appeal’s approach to questions around the assignment by a liquidator of claims in the insolvent estate stands.

Most notably the Court of Appeal confirmed that a liquidator is under no duty to offer defendants the right to acquire the claims against them unless the failure to do so would be perverse.

The director of an insolvent company appealed a restriction order made against him. The order prevented the appellant from acting as a company director or secretary for a 5-year period under section 819 of the Companies Act 2014 (the “2014 Act”). The Court of Appeal dismissed the appeal as the appellant failed to satisfy the court that he acted responsibly in the conduct of the company’s affairs.

The EU Directive on Preventive Restructuring Frameworks (the“Directive”) precipitated a pan-European review by Member States of their corporate restructuring statutes. Several Member States (including Germany and the Netherlands), as well as the United Kingdom, made sweeping changes to their insolvency processes, in some cases introducing entirely new restructuring mechanisms. By contrast, Ireland preserved its examinership regime, introduced over 30 years ago.

Thanks are owed to SPB summer associate Gabby Martin for her contributions to this article.

Last month, a Florida federal jury found in favor of a credit reporting agency (“CRA”) in a trial centering on whether the CRA took “reasonable” steps to assure the accuracy of a consumer’s credit report after a consumer dispute. The result is a valuable glimpse into how juries view the burdens of the statutory obligations placed on reporting agencies by the Fair Credit Reporting Act (“FCRA”).

BMR Slendertone SARL and Slendertone Distribution Inc are wholly owned subsidiaries of Bio Medical Research Limited, an Irish incorporated company involved in the manufacture of electronic muscle stimulation toning products in over 20 countries. Following an unsuccessful examinership, on 2 June 2022 Orders were made winding up the Irish company and appointing a liquidator.