The Financial Conduct Authority, the Information Commissioner’s Office and the Financial Services Compensation Scheme have issued a joint statement warning insolvency practitioners to be careful when handling personal data.

The Joint Statement says that the FCA, ICO and FSCS are aware that some IPs and FCA - authorised firms have attempted to sell clients’ personal data to claims management companies, where it is likely claims for compensation will be made to the FSCS.

Businesses are currently facing unprecedented challenges. DAC Beachcroft is advising the NHS on covid-19 issues, as well as many corporate clients on the business issues arising out of the pandemic, particularly in relation to employees, insurance, continuity and cyber security.

On March 6, 2020, the Ontario Court of Appeal (the “OCA”) released its decision in Royal Bank of Canada v. Bodanis (“Bodanis”),¹ holding that two debtors, each having an estate exceeding $10,000 in value, had appeals of their bankruptcy orders as of right under section 193 of the Bankruptcy and Insolvency Act²(the “BIA”) and thus did not need to seek leave to appeal.

Section 193 reads as follows:

A recent English case has considered for the first time whether and if so to what extent the general duties of a director survive a company’s entry into an insolvency process.

On December 30, 2019, the Supreme Court of Newfoundland and Labrador (the “NLSC”) released its decision in Re Norcon Marine Services Ltd.¹ (“Norcon Marine”), dismissing both an application by a debtor for continuance of its Bankruptcy and Insolvency Act² (“BIA”) proposal proceedings under the Companies’ Creditors Arrangement Act³ (“CCAA”) and a competing application by a secured creditor for the appointment of a receiver.

On October 10, 2019, the Supreme Court of British Columbia (the “BCSC” or the “Court”) released its decision in 8640025 Canada Inc. (Re)¹ (“8640025 Canada”), denying an application to replace the monitor (the “Monitor”) in a Companies’ Creditors Arrangement Act² (the "CCAA") proceeding because the applicant was not a creditor and therefore had no standing to bring such an application.

On January 29, 2020, the Alberta Court of Appeal (the “Alberta CA”) released its decision in PricewaterhouseCoopers Inc. v Perpetual Energy Inc.¹ (“Perpetual Energy”), granting applications requiring a trustee in bankruptcy (the “Trustee”) to post security for costs on appeals brought by the Trustee.

The Quebec Court of Appeal’s unanimous decision in Gestion Éric Savard¹ reaffirms the super-priority ranking of CCAA² DIP financing³ over regular unpaid post-filing obligations, absent steps being taken to reverse this usual order of priorities.

In 7636156 Canada Inc. v. OMERS Realty Corporation¹ (“7636156 v. OMERS”), the Ontario Superior Court of Justice (Commercial List) (the “Court”) held that a bankrupt’s landlord was only entitled to have drawn down on a letter of credit by an amount equal to the landlord’s priority claim for three months’ accelerated rent, rather than by the full amount of the letter of credit, and ordered that the landlord pay over the excess to the bankrupt’s trustee.

In Meadowside Building Developments Ltd (in liquidation) –v- 12-18 Hill Street Management Company Ltd [2019] EWHC 2651 (TCC), the Court found that in certain circumstances, it is possible for companies in liquidation to legitimately engage in adjudication proceedings.

Background

Historically, there has been some doubt as to whether or not an Adjudicator has jurisdiction to make a decision if the referring party was insolvent. This was due to the fundamental incompatibility between the adjudication process and the insolvency regime.