In the recent restructuring plan case of Re Nasmyth Group Limited¹("Nasmyth"), the English High Court declined to exercise its discretion to order "cross class cram down" of HMRC, which was a dissenting plan creditor and which had opposed sanction of the plan, concluding that it would be unfair to sanction the plan.

Summary

Summary

This week’s TGIF considers the case ofMighty River International Ltd v Hughes, where the High Court upheld the validity of Holding DOCAs.

Case history

This case concerned the validity of a deed of company arrangement (DOCA) between Mesa Minerals Ltd (Mesa) and its creditors.

Introduction

The recent case ofPlant & Plant (administrators of Relentless Software Ltd) v Vision Games 1 Ltd & Ors1 concerns the attempt of a funder of a video games developer to recover the proceeds of a tax credit payment made by HMRC to the developer, pursuant to the security that had been granted by the developer to the funder.

In assessing whether the funder could recover such sums, the High Court was asked to consider various issues, including:

Summary

This week’s TGIF considers what the UK decision of Simpkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 means for insolvency practitioners seeking to access potentially privileged documents created by employees of appointee companies.

BACKGROUND

The Court of Appeal1 has ruled that foreign judgments in insolvency proceedings may be enforced by the English courts at common law, and that the ordinary principles which may prevent the enforcement of foreign judgments do not apply to insolvency judgments where the action from which the foreign judgment arises is integral to the collective nature of the insolvency proceedings.

Facts

Armed with an adjudicator’s decision and a TCC enforcement judgment, can a party issue a statutory demand for payment, even if the other party has a genuine and substantial cross claim against the sum awarded? No, said Judge Stephen Davies in Shaw v MFP. Neither the Construction Act nor the Scheme was intended to displace the position under the Insolvency Rules, which give the court discretion to set aside a statutory demand if the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the debt in the statutory demand.

An adjudicator can only deal with one dispute under one contract. In Enterprise v McFadden the adjudicator could not therefore deal with a claim to a net balance arising out of mutual dealings on four separate subcontracts (one of which was not even a construction contract) under Rule 4.90 of the Insolvency Rules 1986. Tripartite adjudication is not possible so the adjudication could not cope with a cross claim which would have involved joining assignors.