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    Financial fraud: data transfer “necessary for reasons of substantial public interest”
    2009-06-01

    In the matter of Bernard L Madoff Investment Securities LLC [2009] EWHC 442 (Ch), Mr Justice Lewison granted an application for the transfer of personal data in the possession of the joint provisional liquidators of a UK subsidiary to the trustee in bankruptcy of its parent company in the US, Bernard L Madoff Investment Securities LLC. The application was granted on the basis that it was necessary for reasons of substantial public interest.

    Filed under:
    United Kingdom, Capital Markets, Insolvency & Restructuring, IT & Data Protection, Litigation, McDermott Will & Emery, Whistleblower, Bankruptcy, Information privacy, Security (finance), Fraud, Personally identifiable information, Hedge funds, Liquidator (law), Subsidiary, European Economic Area, Sarbanes-Oxley Act 2002 (USA), Insolvency Act 1986 (UK), Data Protection Act 1998 (UK)
    Location:
    United Kingdom
    Firm:
    McDermott Will & Emery
    New rules for inhibitions affecting property
    2009-03-30

    The Bankruptcy and Diligence (Scotland) Act 2007contains a wide range of provisions affecting personal insolvency and various forms of diligence for enforcing civil obligations. Many of the provisions that relate to Inhibitions – which apply to heritable property - will come into force on 22 April 2009. Generally these reforms are to be welcomed.

    An inhibition enables a creditor to prevent a debtor from transferring ownership of any of the debtor’s heritable property located in Scotland, or granting a security over it while the debt remains outstanding.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Real Estate, Shepherd and Wedderburn LLP, Bankruptcy, Debtor, Debt, Deed, Good faith, Refinancing, Conveyancing, Capital punishment, Court of Session
    Authors:
    Ann Stewart
    Location:
    United Kingdom
    Firm:
    Shepherd and Wedderburn LLP
    Upcoming major changes to inhibition procedure
    2009-04-09

    On 22nd April 2009, some significant changes to debt recovery legislation are due to come into force, affecting the procedures relating to inhibitions in Scotland. The provisions are a further step in the implementation of changes which are designed to make the debt recovery process more 'user friendly'. Part 5 of the Bankruptcy and Diligence etc (Scotland) Act 2007 brings about the following changes/clarifications:

    Filed under:
    United Kingdom, Insolvency & Restructuring, MacRoberts LLP, Bankruptcy, Debtor, Debt, Deed, Capital punishment, Aircraft registration, Court of Session
    Authors:
    Julie Hamilton
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    Treasury makes Financial Markets and Insolvency Regulations
    2009-04-09

    Treasury has made a new set of Financial Markets and Insolvency Regulations that change the insolvency regime that applies to RIEs and RCHs. The Regulations amend several existing pieces of legislation including Part VII Companies Act 1989 and the 1991 Regulations. The changes include:  

    Filed under:
    United Kingdom, Capital Markets, Insolvency & Restructuring, Dentons, Bankruptcy, Liquidation, Default (finance), Companies Act
    Authors:
    Matthew Hodgson , Robert Finney
    Location:
    United Kingdom
    Firm:
    Dentons
    New rules on arrestments
    2009-04-17

    The 22nd of April 2009 brings in significant changes to rules relating to arrestment and actions of furthcoming. The Bankruptcy and Diligence etc (Scotland) Act 2007 (Commencement No. 4, Savings and Transitionals) Order 2009 brings into force Section 10 of the 2007 Act which inserts Part 3A into the Debtors (Scotland) Act 1987. The provisions coming into effect include:

    Filed under:
    United Kingdom, Insolvency & Restructuring, MacRoberts LLP, Bankruptcy, Debtor, Debt, Contempt of court, Capital punishment
    Authors:
    Julie Hamilton
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    Stay – Judgments Regulation
    2009-02-28

    In DHL GBS (UK) Ltd v Fallimento Finmatica Spa – Butterworths Law Direct 20.2.09 the Commercial Court gave its first decision on the issues dealt with by the ECJ in the Front Comor.

    Filed under:
    United Kingdom, Arbitration & ADR, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Injunction, Arbitration clause, Common Gateway Interface, Court of Justice of the European Union, High Court of Justice (England & Wales), Commercial Court (England and Wales)
    Authors:
    Sally-Ann S. Underhill
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    Unable to pay debts?
    2009-03-23

    Where a debtor's assets exceed his liabilities, the onus is on the debtor to prove he can not pay his debts if a creditor seeks to annul the bankruptcy order.

    In Paulin v Paulin and another, the defendant petitioned for his own bankruptcy claiming he was unable to pay his debts. The claimant applied for the order to be annulled claiming the defendant could afford to pay his debts and was deliberately attempting to defeat her claims in the matrimonial proceedings.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Debtor, Debt, Liability (financial accounting), Legal burden of proof, Insolvency Act 1986 (UK)
    Authors:
    Greg Standing , Ian Weatherall
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Clarity in settlement agreements required
    2009-03-23

    Where the entirety of a debt is not included in an agreement to settle, a creditor can continue to prove in a bankruptcy for the balance.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Interest, Consideration, Debt, Marriage, Bad faith, Insolvency Act 1986 (UK), Trustee
    Authors:
    Greg Standing , Ian Weatherall
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    1 – 0 for arrestment
    2009-03-30

    In April 2008 the Bankruptcy & Diligence (Scotland) Act 2007 ("the Act") introduced a new regime for obtaining permission for (and recalling) diligence on the dependence of a court action (i.e. arrestment and inhibition). In terms of the Act, before granting (or recalling) warrant for diligence, the court must be satisfied that:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, MacRoberts LLP, Bankruptcy, Debtor, Liability (financial accounting), Substantial similarity
    Authors:
    Julie Hamilton , Lynsay Cargill
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    New EAT case on insolvency provisions in TUPE - Oakland v Wellswood (Yorkshire) Limited
    2009-01-07

    This recent case in the Employment Appeal Tribunal (EAT) is one of the first to examine how the insolvency provisions in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) should apply and, in particular, the circumstances in which employment liabilities passed under TUPE to the buyer of the assets of an insolvent company.

    Facts

    This case involved a "pre-pack" administration.

    Filed under:
    United Kingdom, Employment & Labor, Insolvency & Restructuring, Litigation, Shepherd and Wedderburn LLP, Bankruptcy, Shareholder, Marketing, Liability (financial accounting), Liquidation, Unfair dismissal, Precondition, Department for Business, Enterprise and Regulatory Reform, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK), Employment Appeal Tribunal
    Location:
    United Kingdom
    Firm:
    Shepherd and Wedderburn LLP

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