Court of Appeal sets out test for whether defendant has assets for a freezing order application and considers the impact of delay in applying
High Court holds that an Insolvency Exclusion applies in respect of a claim under the Third Parties (Rights Against Insurers) Act 1930 (“1930 Act”) and awards summary judgment accordingly but declines to provide much-needed guidance on insurers’ liability in the case of claims partially settled by the Financial Services Compensation Scheme (“FSCS”).
Case Alert ‐ [2017] EWHC 2597 (Comm)
Court confirms insurance policy exclusions are not construed narrowly/scope of an insolvency clause
The claimants brought a claim under the Third Parties (Rights against Insurers) Act 1930 against the professional indemnity insurers of their financial adviser. The adviser gave allegedly negligent investment advice in respect of bonds issued by a company which then went into liquidation (and so defaulted on payments due to the claimants).
Armes v Nottinghamshire County Council: Supreme Court again considers the nature of the relationship required to find a defendant vicariously liable
In In re Spanish Peaks Holdings II, LLC, Case No. 15-35572 (9th Cir. Sept. 12, 2017), the Ninth Circuit Court of Appeals held that a bankruptcy trustee may use Section 363(f) of the Bankruptcy Code to sell real property free and clear of unexpired leases without affording the non-debtor lessees the right to retain possession of the property.
Written by Ashmi Mohan at Clasis Law
In its recent judgment of Kirusa Software Private Ltd. vs. Mobilox Innovations Private Ltd. Company Appeal (AT) (Insolvency) 6 of 2017, the National Company Law Appellate Tribunal of India (“Appellate Tribunal”) has adjudicated upon the issue as to what does “dispute” and “existence of dispute” mean for the purpose of determination of a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (“Code”).
In In re Lehman Bros. Holdings Inc. 855 F.3d 459 (2d Cir. 2017), the United States Court of Appeals for the Second Circuit affirmed a district court order subordinating the claims of former Lehman Bros.
Asarco LLC v. Noranda Mining, Inc., 844 F.3d 1201 (10th Cir. 2017). In a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution action, the Tenth Circuit ruled that a mining company, whose liability for a contaminated site had been resolved in a settlement agreement approved by the bankruptcy court, could still seek contribution against other potentially responsible parties (PRPs), claiming that it overpaid its fair share of cleanup costs for the site. Id. at 1208.
Globalisation has been described as an evolving set of consequences – some good, some bad and some unintended. In this regard, when companies go global, insolvency is perhaps the furthest thing from their minds. Yet, while business failure may be unintended, when a global company becomes insolvent or attempts debt restructuring, its insolvency representative e.g. liquidator or manager, will often have to deal with assets and creditors across the globe.
There have been a number of cases in recent years in which a party has sought to utilise the provisions of the CPR in order to obtain information on the opposing party's insurance arrangements, rather than waiting for that party to go insolvent in order to use the procedures provided by the Third Parties Rights Act 1930 or 2010. The recent case of Peel Port Shareholder Finance Co v Dornoch Ltd [2017] EWHC 876 (TCC) looks at this again in light of the discretion which Judges have under CPR31.16 for applications for pre-action disclosure and attempts to shut the door on such actions.