Following the High Court’s landmark case in 2023 where cryptocurrency was recognised by the Court as property and could form a subject matter of a trust, the High Court recently further clarified the trust relationship between exchanges and their customers. Non-Consenting Customers (NCCs) who did not accept the 2018 Terms and Conditions (T&C) were found to have a proprietary interest in their assets, giving them priority in the liquidation process. Conversely, customers who had agreed to the T&Cs were treated as unsecured creditors.

In this first of a series of articles looking at current issues and recent case law in the world of distressed PFI/PPP projects, we consider the recent outcome of the Tameside Hospital dispute, and what pointers can be taken from it which may help avoid or resolve disputes in future so that distressed projects can get back on track. This is a tale of disagreement, adjudication, threats of insolvency, Court proceedings and – ultimately – a settlement which may offer a useful benchmark to which other troubled projects can have regard.

Mac Interiors Limited (the Company), a Northern Ireland-incorporated company, has become the first company incorporated outside the Irish State (and the EU) to have an examiner appointed under the examinership regime provided for in section 509 of the Companies Act 2014 (the 2014 Act).

Introduction

The European Union (Preventive Restructuring) Regulations 2021 (the Regulations) were signed into law in Ireland on 27 July 2022. The Regulations provide for the transposition of the mandatory articles of Directive (EU) 2019/1023 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt (the Directive).

On 27 July 2022, the European Union (Preventive Restructuring) Regulations 2022 (S.I. 380/2022) (the Regulations) amended the Irish Companies Act 2014 (the Act) by transposing certain requirements of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 (the Directive) not already provided for in Irish law.

This has resulted in a number of modifications to the examinership regime and, for the first time, a codification of directors' duties when companies are in the `zone of insolvency'.

The changes to the Examinership regime include:

The Ontario Superior Court of Justice’s decision in Carillion Canada Inc. clarifies how the principles in Montréal (City) v. Deloitte Restructuring Inc. (Montréal) should be applied to contingent obligations that are only quantified after the debtor company files for creditor protection.

In the receivership proceedings of Distinct Infrastructure Group Inc.

On July 13, 2022, the Court of Appeal for Ontario allowed an appeal from the Order of a bankruptcy judge in Sirius Concrete Inc. (Re), 2022 ONCA 524 (Sirius), which ruled that certain funds paid by a trade creditor formed part of the bankrupt’s estate. The issue on appeal was whether a constructive trust should be imposed over certain funds due to a claim of unjust enrichment arising from alleged fraudulent misrepresentations made by the bankrupt on the eve of its bankruptcy filing.

What this means for the shareholders of a business facing insolvency