This is the second in a series of articles on how the changes introduced by the 2024 JCT (Joint Contracts Tribunal) contracts will impact the practical administration of the JCT contractual mechanisms.

In this article, we look specifically at the insolvency related provisions in the 2024 Design and Build (D&B) contract and the 2024 Intermediate Building Contract with Contractor’s design (ICD) contract. We address the updates to the definition of insolvency, the impact of those changes for Employers and Contractors and the related knock-on impact to sub-contracts.

In a recent judgment¹, the High Court determined (contrary to the arguments of the affected secured creditor) that a debenture created a floating charge rather than a fixed charge over certain internet protocol (IP) addresses. Whilst elements of the decision are inevitably fact-specific, some broader lessons and reminders can be taken from the judgment which will be of general relevance to lenders when taking security.

FOLLOWING OUR PREVIOUS ARTICLES ON THE QUALEX-LANDMARK TOWERS INC V 12-10 CAPITAL CORP CASE BEING HEARD IN THE ALBERTA COURTS, 12-10 CAPITAL CORP HAS NOW BEEN APPEALED SUCCESSFULLY IN THE COURT OF APPEAL OF ALBERTA, WHICH RELEASED IT’S DECISION EARLIER LAST MONTH. BEALE & CO PROVIDES AN UPDATE AND FURTHER COMMENTARY ON THE LATEST DEVELOPMENT OF THIS ENVIRONMENTAL CASE.

Following our previous article on the Canadian case of Qualex-Landmark Towers Inc v 12-10 Capital Corp, there has been an application to appeal to Alberta’s highest court with several intervener applications. Beale & Co provides an update and further commentary on the next chapter of this environmental case.

Introduction

Independent schools have not been immune from financial stress in recent years. Prior to the pandemic a combination of increasing staff costs, greater competition and the need for continual investment in technology and premises was already posing challenges for a number of institutions. This was exacerbated by the unique pressures of COVID, which saw income squeezed as a result of enforced school closures and reduced pupil numbers.

In a judgment that will be welcomed by insolvency professionals, the Supreme Court has today confirmed that administrators cannot be personally criminally liable for failing to notify the Secretary of State about plans for collective redundancies. This judgment follows an appeal by Robert Palmer against a finding that he was criminally liable for his failure to submit form HR1 in his capacity as the joint administrator of West Coast Capital (USC) Limited (USC).

What is the obligation?

This judgment reinforces the Court’s power to order a judgment debtor to draw down their pension for the benefit of the creditors as recently seen in Bacci v Green.

Summary

The recent judgment handed down by the High Court in Manolete v White [2023] EWHC 567 (Ch) reinforces the Court’s power to order a judgment debtor to exercise a right to draw down on their pension for the benefit of creditors as recently seen in Bacci v Green.

The Facts

The Court of Appeal has upheld the High Court decision of Mr Justice Fancourt in Denaxe Limited v Cooper & Anor [2022] EWHC 764 (Ch) striking out a substantial damages claim brought against court appointed receivers concerning the 2019 sale of Blackpool Football Club.

简介

最近在Re Guy Kwok-Hung Lam [2023] HKCFA 9一案中，香港终审法院澄清，如果受争议的呈请债务所涉及的协议载有专属司法管辖权条款（「专属条款」），法院应如何处理清盘及破产呈请。

案情

上诉人于2017年与CP Global Inc（「该公司」）及答辩人订立了一份信贷及担保协议（「信贷协议」）。据此，上诉人向该公司提供定期贷款，答辩人就该公司结欠上诉人的所有款项提供个人担保。信贷协议载有专属条款，就该协议所产生或与之有关的所有法律程序赋予纽约法院专属司法管辖权。

于2020年，上诉人认为发生了信贷协议所指的违约事件，故要求答辩人支付信贷协议项下的未偿还本金及利息。答辩人未有按上诉人的要求还款，因此上诉人在香港针对答辩人展开破产法律程序。另一方面，答辩人在纽约提起诉讼，请求法院求宣告并无发生信贷协议下的违约事件。

答辩人反对在香港提出破产呈请的主要理由之一，是专属条款规定上诉人须首先在纽约法院就双方争议进行诉讼，然后才可在香港展开破产程序。

Introduction

In the latest judgment handed down by the Hong Kong Court of Final Appeal in Re Guy Kwok-Hung Lam [2023] HKCFA 9, the Court of Final Appeal clarified the approach to winding up and bankruptcy petitions where the agreement from which the disputed petition debt arose contains an exclusive jurisdiction clause (“EJC”).

Facts