In the recent decision of Orexim Trading Limited v Mahavir Port and Terminal Private Limited, the Court of Appeal has ruled that the Court does have power to permit service of a claim under section 423 of the Insolvency Act 1986 outside England and Wales. However, in the circumstances of this case, the Court of Appeal declined to exercise its discretion to grant permission to serve the claim form outside the jurisdiction. HFW acted for the successful First Respondent, Mahavir Port and Terminal Private Limited (MPT).

Background

In Ziggurat (Claremont Place) LLP v HCC International Insurance Company plc [2017] EWHC 3286 (TCC) the court considered a claim under an amended ABI Model Form Guarantee Bond.

As a result of a bespoke clause the Contractor's insolvency was enough to trigger recovery under the Bond, but if a breach of contract was required, the Contractor was in breach of the contract by failing to pay the amount due to the Employer following insolvency.

Briefings

Navigating the tension between private dispute resolution and insolvency class actions, March 2018

In Lasmos Limited v. Southwest Pacific Bauxite (HK) Limited1, the Hong Kong Court of First Instance dismissed a winding-up petition based on an unsatisfied statutory demand.

Briefings

A recent ruling by the English High Court in BILTA v RBS1, concerning EU Emissions Allowances (“EUAs” or “carbon-credits”) trading has re-opened the debate on when materials forming part of an internal investigation can benefit from litigation privilege. The decision further undermines the restrictive approach taken by Andrews J in SFO v ENRC2 when applying the “sole or dominant purpose test” to dual-purpose communications.

Background – Emissions Trading Fraud

A recent decision of the Privy Council dismissing the claim of liquidators of an insolvent hedge fund to claw back redemption payments made to an investor leaves lingering uncertainties for investors generally.

Claw backs post 2008 crisis

The Pugachev tale

October 2017

INSURE

InSure

This month's roundup of developments affecting the insurance industry sees ECON calling on the European Commission to postpone the application date of the IDD, EIOPA issuing final guidelines on complex insurance-based investment products under the IDD and the European Commission releasing a report on consumers' decision-making process in insurance services.

General Update

It is now clear that the Pensions Regulator will take a much tougher approach in future towards employers and scheme funding. The new approach comes after a select committee of MPs looking into the BHS collapse criticised the Regulator for being reactive, slow-moving and reluctant to exercise its powers.

The two key areas where we expect the Regulator to be more aggressive are scheme funding and "moral hazard" powers.

The professional indemnity insurer of an insolvent independent financial adviser (Target) successfully relied on an insolvency exclusion in the policy to deny liability to third party (former) clients of Target1.

In 2005 Target had advised Mr. and Mrs. Crowden to invest £200,000 in a “Secure Income Bond” issued by SLS Capital SA in Luxembourg and Keydata Investment Ltd.2 SLS went into liquidation in 2009.

BANKING

ECON votes to adopt draft report on proposed BRRD Insolvency Hierarchy Directive