The Autumn budget will have done little to ease the concerns of companies facing significant trading pressures as the country tries to get back on its feet following the pandemic, the ongoing effects of Brexit, the Ukraine conflict and the current cost of living crisis. Inflation has now topped its forecasted peak at 11.1%; there are soaring energy prices and the UK is now officially in recession.

When an Event of Default is "continuing" is not defined or addressed in the ISDA Master Agreement. Until now it does not appear to have been expressly considered in case law either.

The Third Parties (Rights against Insurers) Act 2010 (the “2010 Act”) came into force on 1 August 2016 and replaced the Third Parties (Rights Against Insurers) Act 1930 (the “1930 Act”).

The previous 1930 Act had enabled a third party to bring a claim directly against an insurer where the insured had become insolvent, however a claimant had to (i) restore a dissolved company to the register of companies and obtain the leave of the court to allow proceedings to be commenced; (ii) obtain judgment against the insured; and (iii) commence separate proceedings against the insurer.

As the tile suggests the state of recognition and assistance jurisprudence & practice in Hong Kong is less than clear. This follows the recent (mostly) conflicting 1st instance decisions of Up Energy and Global Brands. Here are my views about (i) what I believe is settled; (ii) the points of judicial difference; and (iii) what remains unclear.

Settled

Litigation funding continues to be a popular investment vehicle in the UK as the assets available to funders topped £2bn at the start of the decade. Bloomberg has noted that a “flood of money” was moving into the area. This trend appears likely to continue as funders are attracted to litigation as an investment vehicle as economic uncertainty persists and the post-COVID litigation landscape develops.

On 5 October 2022, the Supreme Court delivered its long awaited judgment in BTI 2014 LLC V Sequana SA [2022] UKSC 25 dismissing an appeal by BTI. Lord Reed and Lady Arden each gave their own judgments which concurred, largely applying the same reasoning, with the judgment of Lord Briggs with whom Lord Kitchen and Lord Hodge agreed.

The Supreme Court has handed down its long-awaited judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25.

Basic facts

In the latest edition of Going concerns, Stephenson Harwood's restructuring and insolvency team covers the use of lock-up agreements in schemes of arrangements, and the developments in Singapore and Hong Kong as regards recognition of foreign insolvencies. Our final article is a must-read for lenders, discussing the circumstances under which security may be unwound as a undervalued transaction.

Content

The fallout from failed tax saving arrangements using Employee Benefit Trusts (“EBTs”) continues. In Hunt, directors who in reliance on tax advice from a firm of accountants, arranged for a company to use an EBT, were found not in breach of duty.  The decision whilst of comfort to directors, increases the likelihood of recovery actions following failed tax saving schemes shifting back on the accountancy firm tax advisors. 

Background

On 20 May 2022 Mr Justice Adam Johnson handed down his judgment in the matter of Swiss Cottage Properties Limited (in liquidation) [2022] EWHC 1495 (Ch).  Deloitte, represented by Derrick Dale QC and Ben Griffiths as instructed by DAC Beachcroft LLP, successfully defended a claim for negligence. A copy of the judgment is available here.