In recent years it appears to have become a common trend for distressed homeowners to publish voluntary surrender notices as a stratagem to stay execution proceedings instituted by creditors. We have also witnessed an increase in institutions approaching distressed homeowners following publication of a notice of sale in execution, purporting to be in the business of assisting distressed homeowners by guarding their homes from sales in execution by the sheriffs of the high courts.

On May 1, 2015, the Alberta Court of Appeal rendered its decision in 1773907 Alberta Ltd. v. Davidson, 2015 ABCA 150, and allowed an appeal permitting an action, brought in the name of an insolvent company, to proceed, notwithstanding that the company had assigned this claim to a third party. As will be discussed, the assignment of an action to a third party is often found to be caught by the doctrines of champerty and maintenance, and the decision by the Court serves to identify where such an assignment will be permitted.

In a recent winding-up case, Discreet Ltd v. Wing Bo Building Construction Co., Ltd [2017] HCCW 49/2017, the Court confirmed that when there is clearly a cross-claim which exceeds the sum claimed by the petitioner, and it is clear that the cross-claim is genuine and based on substantial grounds, the petition can amount to an abuse of process.

Background

In 2008, Harvey, an experienced businessman, guaranteed a debt owed to Dunbar Assets plc (Dunbar).  Dunbar subsequently served a statutory demand on Harvey in 2011 for payment under the guarantee.

In 2012, Harvey applied, unsuccessfully, to set aside the demand in the County Court on the ground of promissory estoppel.  However, the demand was subsequently set aside by the Court of Appeal on a completely unrelated ground.

The Masri litigation has yet again troubled the English Court on the principle of comity and provided the Court of Appeal with the opportunity to say just how important it is in international debt enforcement.

The background on Masri

Background

The summer months are upon us, and developments in insolvency law and practice continue apace. Since our Spring issue the courts have pronounced in a number of interesting cases. At the time of writing, the World Cup is underway – it would perhaps be remiss not to have some football flavour in this article, and so some observations on the plight of Portsmouth FC are appropriate (though saved till the end).

Successive notices of intention to appoint administrators: more than one moratorium?

His Honour Judge Purle QC in Re Cornercare Limited [2010] EWHC 393 (CH) has clarified English law on the filing of successive notices of intention to appoint administrators. He has held that there is nothing in the relevant provisions of the Insolvency Act 1986 ("IA 1986") to prevent the filing of successive notices of intention to appoint administrators, where the original notice of intention to appoint an administrator had not been acted upon for good reason.

"Leaving the mice in charge of the cheese..." is how one commentator described the now far from unusual phenomenon of the pre-pack administration sale. But what is meant by a "pre-pack"; are they lawful and what is the legitimate area for concern? While they were fairly uncommon in the past, pre-packs now seem to have become all the rage. Why? What scope is there for challenge or review if abuse is suspected?

What is a "pre-pack"?

Although service of a statutory demand or winding-up petition on a company is a blunt and unsophisticated debt recovery tool, it will often have the desired effect for a creditor as they are seldom ignored and ignored only at the company's peril. It can often prompt payment of the sum due, or judgment owed, where previously there has been prevarication and empty promises of payment.

Here is a reminder of some important issues a (solvent) company should consider if a statutory demand or petition is served upon it.

Doing nothing is not an option