Under Part 26 of the Companies Act 2006, it is open to a solvent company to enter into an arrangement or compromise with its creditors or members. Over the past 10-15 years such solvent schemes have been implemented in M&A and restructuring transactions and have proved increasingly popular in the insurance market, permitting insurers to crystallise their contingent liabilities.

Scottish Lion appealed against a judgment delivered by Lord Glennie in which the petition for the proposed scheme of arrangement was dismissed (see our previous blog entries http://www.insurereinsure.com/BlogHome.aspx?entry=1910 and http://www.insurereinsure.com/BlogHome.aspx?entry=1985).

Scottish Lion Insurance Company is attempting for the second time to promote a solvent scheme of arrangement to bring its insurance business to an early close. The first attempt was abandoned in 2005 when the company was ordered by the Scottish Court to disclose to one objecting creditor a list of all its scheme creditors, whereupon the proposed scheme was withdrawn.

In a judgment handed down last week, the Court of Appeal upheld the decision of Mr Justice Blackburne (previously reported here) that the English courts have no jurisdiction to sanction the proposed scheme of arrangement for Lehman Brothers International Europe (LBIE) insofar as it purports to extinguish rights of beneficiaries under trusts.

In August 2009, an English court sanctioned the use of a scheme of arrangement to restructure the debt of IMO Car Wash Group, a highly leveraged UK based car wash company. This decision follows the similar use of schemes of arrangements in other restructurings. For example earlier this year an English court sanctioned the use of a scheme in the debt restructuring of McCarthy & Stone. In both of these restructurings, the subordinated creditors were left with no value for their debt claims.

The High Court in London has decided that a scheme of arrangement under the UK Companies Act 2006 cannot be used by the administration of Lehman Brothers International (Europe) (LBIE) to facilitate the return of client assets to LBIE clients.

Introduction

This Note deals with the potential liabilities under English Law of the directors and officers (secretary and managers) of a UK company in the event of its (potential) insolvency.  

Summary  

Directors - and, to a lesser extent, other officers of a company - face a number of areas of potential personal liability. Of most relevance is the liability of the directors for ‘wrongful trading’.  

The Banking Bill recasts key aspects of bank supervision and insolvency. With such wide-ranging changes to digest, financial institutions and other companies could be forgiven for ignoring the seemingly obscure clauses relating to financial collateral. But these provisions could remove legal uncertainty for those taking collateral particularly in traded markets (like energy trading) where banks are not always the main players.

Background to Re Permacell

On the 1 October 2007 new Practice Directions to the Civil Procedure came into force which will affect applications to court under the Companies Acts 1985 and 2006. In particular the rules in relation to schemes of arrangement under section 425 Companies Act 1985 are being amended to incorporate provisions in the Companies Act 2006 coming into force on 1 October 2007.