This decision by the TCC provides further consideration of the right of a company in liquidation to refer a dispute to adjudication. It follows the earlier Court of Appeal decision in Bresco Electrical services Limited (in liquidation) v Michael J Lonsdale (Electrical) Ltd (“Bresco”) which we considered in an article earlier this year.

The facts

If a company becomes insolvent or experiences a liquidity crunch, which necessitates a restructuring or resort to higher-risk financing arrangements, the directors should consider whether to commence formal proceedings to facilitate the restructuring or financing.

Not for a long time has the importance of understanding and managing a director’s duties in times of financial distress been so overwhelming. Here, Carey Olsen partner David Jones and associate Tim Molton examine those duties in greater detail, particularly in relation to Guernsey’s company law.

Service area / Restructuring and Insolvency

Location / British Virgin Islands

Date / February 2019

This article considers how to challenge an act, omission or decision of an office-holder.

The right to bring a challenge derives from Section 273 of the BVI Insolvency Act 2003, which provides:

A person aggrieved by an act, omission or decision of an office holder may apply to the Court and the Court may confirm, reverse or modify the act, omission or decision of the office holder.

The judgment also provides clear guidance on challenges to an adjudicator’s jurisdiction, which is of importance to all involved in adjudications.

Background

The case concerned two conjoined appeals, Bresco Electrical Services Limited (in liquidation) v Michael J Lonsdale (Electrical) Limited and Cannon Corporate Limited v Primus Build Limited.

Bresco

Zone of insolvency - directors in the firing line

Happy New Year?

2018 saw a number of high profile insolvencies around the world, including in Guernsey. The climate for many sectors remains extremely challenging with the UK further hindered by continuing uncertainty around Brexit. EY's Profit Warning Stress Index hit its joint highest level for two years in the third quarter of 2018 with 68 UK quoted companies issuing profit warnings.

A recent decision in Michael J Lonsdale (Electrical) Limited v Bresco Electrical Services Limited (In Liquidation) [2018] (TCC) has held that a company in liquidation cannot refer a dispute to adjudication when that dispute includes (whether in whole or in part) determination of any claim for further sums said to be due to the referring party from the responding party. 

Background

The Court of Appeal of Jersey has now considered in an appeal against the Royal Court’s decision of 10 January 2018 the case of a UK trustee in bankruptcy (the “Trustee”), whose appointment had been recognised in Jersey by order of the Court and who had been authorised to obtain documents and/or information for particular purposes, who was later subject to coercive measures in his home jurisdiction requiring the disclosure of such material for different, unauthorised purposes (in this case an Information Notice issued by HMRC pursuant to Schedule 36 of the UK Finance Act 2008 (the “

The Supreme Court of Bermuda has confirmed once again its willingness to order Confidentiality Orders in cases that involve the administration of private trusts. In the 2018 case of In the Matter of the E Trust (the “E Trust”), Acting Justice, Shade Subair Williams (subsequently appointed as a Puisne Judge) reaffirmed previous rulings that private trust proceedings can be anonymized and heard privately in Chambers.

The Facts

The Royal Court of Jersey was recently required to consider its approach when a trustee in bankruptcy appointed in a foreign jurisdiction (the “Trustee”), whose appointment has been recognised in Jersey by order of the Court and who has been authorised to obtain documents and/or information for particular purposes, is later subject to coercive measures in his home jurisdiction requiring the disclosure of such material for different, unauthorised purposes.