Individuals undergo bankruptcy proceedings for many reasons, chief among them to seek relief from their debts and obtain a fresh financial start. However, the opportunity for a fresh start can be limited when the bankrupt’s debts arise from securities fraud. In the Supreme Court of Canada’s recent decision in Poonian v.

Despite numerous obstacles and challenges faced along the way following Brexit (and its inevitable impact on tracing and recovering assets of UK based debtors overseas), we last left our brave cross-border recovery specialists triumphantly holding the hard-won exequatur judgment which expressly recognised the bankruptcy order and Trustee in Bankruptcy (TIB) and confirmed that all rights and powers were enforceable in France. Vive La France!

This is the second in a series of articles on how the changes introduced by the 2024 JCT (Joint Contracts Tribunal) contracts will impact the practical administration of the JCT contractual mechanisms.

In this article, we look specifically at the insolvency related provisions in the 2024 Design and Build (D&B) contract and the 2024 Intermediate Building Contract with Contractor’s design (ICD) contract. We address the updates to the definition of insolvency, the impact of those changes for Employers and Contractors and the related knock-on impact to sub-contracts.

The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 ("the 2024 Act") introduces some changes to the statutory insolvency regime in Ireland. The relevant provisions of the 2024 Act came into effect earlier this month on 1 July 2024.

The High Court has confirmed in the recent case of Hyde and another v Djurberg and others ([2024] EWHC 1188 (Ch)) that it won't tolerate the concealment of after-acquired property from trustees in bankruptcy, even when the property is the subject of a settlement agreement and paid onto various third parties. The judgment highlights the importance of monitoring a bankrupt's affairs as a trustee, acting quickly to preserve assets and serving a notice pursuant to section 307 of the Insolvency Act 1986 (Act) if there's a potential claim for after-acquired property.

The High Court has handed down judgment against two former directors of a number of BHS group companies. The Joint Liquidators, Anthony Wright and Geoffrey Rowley (both of FRP Advisory) brought claims against Lennart Henningson and Dominic Chandler for wrongful trading, misfeasance trading and individual misfeasance.

Wrongful trading

In a recent judgment¹, the High Court determined (contrary to the arguments of the affected secured creditor) that a debenture created a floating charge rather than a fixed charge over certain internet protocol (IP) addresses. Whilst elements of the decision are inevitably fact-specific, some broader lessons and reminders can be taken from the judgment which will be of general relevance to lenders when taking security.

Corporate governance practices are truly put to the test in two instances: 1) the commencement of litigation; and 2) entry into the zone of insolvency. The latter (distressed circumstances) increases the likelihood of the former (claims against directors and officers).

When distressed circumstances do arise, it is critical to ensure that best practices are in place and adhered to. Often, there may be little time in a crisis to consider and adopt new governance practices given the speed at which events may unfold. Directors need to get it right, and quickly.

Fund sponsors continue to face a challenging fundraising market and many are sensitive to increasing investor demand for liquidity. Higher interest rates and public market dislocation continue to make capital-raising difficult, while decreased fund distributions are limiting capital available for new commitments, leading investors to prioritize liquidity and invest cautiously.

The Court of King’s Bench of Alberta (the Court) recently revisited the stringent boundaries on the types of claims that can be brought against court-appointed officers. The decision in North v Davison, 2024 ABKB 242 (the Decision) highlighted the protective measures that courts employ to safeguard the integrity and function of receivership proceedings against unfounded or speculative claims. In the Decision, the Court struck down a counterclaim against Ernst & Young Inc.