In light of the radically and rapidly changing face of bricks and mortar retail, cases providing guidance on the way in which liabilities are to be dealt with in the course of the restructuring / insolvency process are extremely valuable not only for stakeholders and practitioners dealing with the consequences of those processes but also to those guiding and devising the strategies in the first instance.
Wright and Rowley v Prudential Assurance Company Limited is one such case arising out of the collapse of the British Home Stores (‘BHS’) retailing group in 2016.
This article was first published for Thomson Reuters' Practical Law Dispute Resolution Blog.
On 20 October 2017 Registrar Derrett handed down judgment in the case of Thomas v Haederle (unreported), in which she gave reasons for dismissing a bankruptcy petition presented by the debtor (T) in the County Court at Norwich on 4 December 2014, pursuant to s 272 of the Insolvency Act 1986 (IA86), as it then was.
This interview was conducted by Lucy Trevelyan at LexisNexis. The views expressed by the interviewees are not necessarily those of the proprietor.
Property Analysis: A recent Court of Appeal decision on the payment of service charges, while correct in principal, was wrong on the facts, according to Peter Petts, barrister at Hardwicke Chambers.
Original News
Skelton and others v DBS Homes (Kings Hill) Ltd [2017] EWCA Civ 1139, All ER (D) 196 (Jul)
In May 2017, the Irish Government signed a commencement order giving immediate effect to the ‘Alternative A’ insolvency remedy of the Aircraft Protocol to the Cape Town Convention on International Interests in Mobile Equipment (the Convention). The long-awaited implementation of ‘Alternative A’ gives force of law in Ireland to a regime which is similar to the insolvency regime in the USA, known as Chapter 11 “reorganisation” bankruptcy. The insolvency remedies in the Convention were designed to strengthen creditor’s positions.
Further evidence that Ireland is emerging from economic recession can be seen in the publication of the Courts Service Annual Report 2016 (the Report). An examination of the Report’s figures relating to debt collection activity shows a continuing decline in creditor litigation and enforcement. The number of default judgments marked in 2016 across the District, Circuit and High Courts shows a fall to 10,475 from 14,204 during the previous year. This represents almost an 80% drop on the equivalent number of such judgments marked in 2010.
This article was first published in Insolvency Intelligence 2017 30(6) and is now available on Westlaw.
The Court of Appeal has helpfully confirmed that a judgment creditor can seek an order appointing a receiver by way of equitable execution where:
- the debtor holds a legal or equitable interest in property; and
- execution against the property is not available at law by one of the usual methods, for instance via the sheriff or by a garnishee order.
There was previously doubt as to whether such a receiver could be appointed where the debtor held a legal, as opposed to an equitable interest, in property.
The High Court confirmed that it is generally not appropriate to present a winding up petition to recover sums due under a construction contract, particularly where those sums are disputed or there is a legitimate cross claim.