Litigation between Mr and Mrs Brake, Axnoller Events Ltd and various other parties has been the subject of a significant number of judgments covering a wide range of legal issues. The underlying facts are convoluted but can be briefly summarised for the purpose of the recent decision of the Supreme Court in Brake & Anor v The Chedington Court Estate Ltd [2023] UKSC 29 as follows.

The application before HHJ Paul Matthews, sitting as Judge of the High Court, in Patley Wood Farm LLP & Ors v Kristina Kicks & Anor [2022] EWHC 2973 (Ch) was essentially a challenge to the decision of trustees in bankruptcy not to intervene in an appeal in possession proceedings between the bankrupts and a Chedington, a creditor, following the purported sale of the bankrupts’ interest in a property known as West Axnoller Cottage.

In a landmark decision, the BVI Commercial Court has confirmed that ultimate beneficial interest holders of notes are 'creditors' under the BVI Insolvency Act and so have standing to issue liquidation applications against defaulting note issuers.

Mourant Ozannes, working alongside Ashurst (Hong Kong) and Counsel, Peter Burgess of South Square, has secured a landmark decision in the matter of Cithara Global Multi-Strategy SPC (Cithara) v Haimen Zhongnan Investment Development (International) Co Ltd (the Company).

The question of whether a British Virgin Islands Court can order the examination of foreign persons in the liquidation of BVI companies has been the subject of two recent conflicting decisions of the Commercial Division of the High Court. As such, the answer to the question is likely to remain uncertain until it has been resolved by the Eastern Caribbean Court of Appeal.

The Statutory Framework

Section 284 of the Insolvency Act, 2003 provides that:

King v Bar Mutual Indemnity Fund [2023] EWHC 1408 (Ch) deals with a number of bases on which Susan King, James King and Anthony King each applied to set aside statutory demands for £219,700.00 made by the Bar Mutual Indemnity Fund. That sum was payable under an interim costs order made against the Kings by Cockerill J following a successful strike out of conspiracy proceedings. Those in turn arose out of a misrepresentation case.

The question for the court in Durkan & Anor v Jones (Re Nicholas Mark Jones) [2023] EWHC 1359 (Ch) was whether it had jurisdiction to make a bankruptcy order.

Official Receiver v Kelly (Re Walmley Ash Ltd and Company Directors Disqualification Act 1986) [2023] EWHC 1181 (Ch) deals with an application for a disqualification order under s 6 Company Directors Disqualification Act 1986 against Andrew John Kelly arising out of his conduct as a director of Walmsley Ash Ltd which was wound up by the court on an HMRC petition in 2017. The conduct relied on was that:

City Gardens Ltd v DOK82 Ltd [2023] EWHC 1149 (Ch) was a successful appeal against the decision of the district judge below to dismiss a winding up petition on several bases: first that the court had no jurisdiction to make an order because arrangements between the parties were subject to an exclusive jurisdiction clause, secondly because they provided for the application of Hong Kong law rather than English law, thirdly by reason of disputes regarding certain other contractual terms, and finally by reason of an issue as to whether the company had a viable cross claim.

The judgment of Adam Johnson J in Re Great Annual Savings Company Ltd, (Re Companies Act 2006) [2023] EWHC 1141 (Ch) demonstrates again the rigorous approach the courts are taking in relation to the fulfilment of the conditions required to “cram down” dissenting creditors in restructuring plans as well as in the exercise of the court’s discretion to sanction them.

This article is the second in a series of three articles which examine the key features of a securitisation vehicle and the advantages of utilising an Orphan SPV in the Cayman Islands for a securitisation transaction.