Until recently, Irish creditors could reasonably assume that money judgments awarded in Ireland could be enforced within all other EU member states, including the UK[1]. This gave Irish creditors comfort that they could swiftly and cost-effectively pursue UK-situate assets of a judgment debtor, after a judgement was obtained in Ireland.

Simple retention of title clauses are commonplace and generally effective in contracts for the sale of goods. However, extending their effect to the proceeds of sale of such goods requires careful drafting.

The Court of Appeal has provided some further clarity around the creation and effects of fiduciary obligations in relation to such clauses.[1]

Proceeds of sale clauses

A recent Court of Appeal decision in the UK has ruled that individuals facing bankruptcy cannot be forced to hand over their pensions to pay off outstanding debts. We examine the affect insolvency can have on your pension in this jurisdiction.

The recent UK Court of Appeal decision in Horton v Henry ruled that there was no requirement to draw down funds held in a pension in the event of bankruptcy. As a result of this decision, the UK legal system now appears to acknowledge that pension funds should be out of the reach of a bankruptcy trustee.

September 2016

Commercial Litigation

Can a conflicting email and attachment regarding settlement amount to an acceptance, or does it constitute a counter offer?

Summary

In an appeal from the County Court, regarding the forfeiture of a lease, the High Court confirmed that a purported acceptance of a settlement offer was actually a counter offer. In suggesting an alternative payment date, the company had made a counter offer which the other party had not accepted.

Background

The Residential Tenancies (Amendment) Act 2015 has undoubtedly strengthened the position of tenants and increased the responsibilities and challenges facing receivers appointed by secured lenders over residential investment properties. While the added protections for tenants are to be welcomed, certain provisions of the Act result in relatively onerous obligations on receivers who are already faced with practical difficulties when seeking to deal with and realise the secured asset in accordance with their duties.

The case of Burnden Holdings (UK) Limited (in liquidation) v (1) Gary John Fielding (2) Sally Anne Fielding [2016] determined whether a claim in respect of breach of duty against two directors of Burnden Holdings (UK) Limited (Burnden) was time-barred. The alleged breach of duty was in connection with a distribution in specie. The Court of Appeal overturned the High Court’s decision and held that section 21 of the Limitation Act 1980 (LA 1980) applied so that the claim was not subject to the usual period of limitation.

As we head into a new Legal Year, we examine recent trends in debt recovery litigation. The Courts Service 2015 Annual Report noted, in the words of Chief Justice Ms. Susan Denham, “another busy year for the courts”. Indeed, the courts received 248,254 new civil cases in 2015, a very marginal decrease from the corresponding 2014 figure.

Default judgments

The High Court has reiterated that cross-examination will not generally be permitted on an interlocutory application, or where there is no conflict of fact on the affidavits.

In McCarthy v Murphy,^[1] the defendant mortgagor was not permitted to cross-examine the plaintiff (a receiver) or a bank employee who swore a supporting affidavit.

Background

This briefing is the second in a series of 3 briefings about the Third Parties (Rights Against Insurers) Act 2010 which we will be publishing on the run-up to it coming into force on 1 August 2016.

Click here if you would like to read the first briefing in the series.

The pros and cons every claims professional needs to know

Two recent judgments have brought further clarity in relation to the rights acquirers of loan portfolios to enforce against borrowers: