In this chapter of our Annual Insurance Review 2023, we look at the main developments in 2022 and expected issues in 2023 for restructuring and insolvency.
Key developments in 2022
Corporate insolvencies have been rising sharply in 2022 albeit against the backdrop of record low insolvency filings during the pandemic. By June, they had reached their highest quarterly level since 2009 and the depths of the global financial crisis.
Corporate Enforcement Authority Issues Helpful Guidance Note
The Preventative Restructuring Directive
In July 2022, the European Union (Preventive Restructuring) Regulations 2022 (the Regulations) transposed the requirements of EU Directive 2019/1023 (the Preventative Restructuring Directive) into Irish law.
Certain of the consequential amendments to the Companies Act 2014 (the Act) relate to the duties and responsibilities that directors of companies have in circumstances of financial difficulty and/or insolvency.
Corporate insolvency numbers continued to appear artificially low in 2022. The expectation is that they will rise once businesses need to deal with the aftermath of Government pandemic supports and, in particular, start to pay warehoused taxes.
The Judgment of the Supreme Court in BTI 2014 LLC v Sequana SA was handed down on 5 October 2022.
The Supreme Court considered the circumstances in which company directors must exercise their duties under s.172 Companies Act 2006 (CA06) with regard to the interests of the creditors and affirmed the position reached by the Court of Appeal.
Comment
Some 12 months ago, following the publication of that year’s Courts Service Annual Report, we suggested that 2020 would be remembered as a year like none other. However, a year later, the publication of the Courts Service Annual Report for 2021 (Report) describes a year of legal activity, in a debt recovery context, that very closely mirrors 2020.
The European Union (Preventive Restructuring) Regulations 2022 were signed on 27 July 2022 to give effect to an EU directive (Directive (EU) 2019/1023). The Directive aims to ensure that member states have in place effective frameworks for early warning and prevention of corporate insolvency.
The High Court recently rescinded an order adjudicating a debtor bankrupt in Ireland because the debtor failed to disclose material facts to the Court in his application for bankruptcy. In doing so, the Court established a duty of full disclosure that debtors must comply with when seeking to be adjudicated bankrupt in Ireland.
This decision will be welcomed by creditors where there is a concern that a debtor may seek to relocate from other EU member states to Ireland to avail of Ireland’s comparatively benign bankruptcy regime.
Background
Some 13 years ago, Lehman Brothers' sudden and unexpected insolvency sent ripples across the banking and financial services market, some of which are still felt today.
The Court of Appeal's decision in the consolidated cases of Lehman Brothers Holdings Scottish LP 3 v Lehman Brothers Holdings plc (in administration) and others1 [2021] EWCA Civ 1523 was the latest in a long line of cases seeking to unwind the issues arising from Lehman Brothers' unexpected collapse.
The background
The High Court has held that disclosure of debts and undertakings given to the Circuit Court in seeking a protective certificate for a personal insolvency arrangement can be relied on in other proceedings.
Background
The McLaughlins were engaged in a long running saga of litigation with Bank of Scotland plc (“BOS”) and, after a loan sale, Ennis Property Finance Limited (“Ennis”).
In 2016 they issued High Court proceedings against Ennis and Tom Kavanagh (the “Plenary Proceedings”).