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    Court of Appeal considers insolvent company's right to deal with goods subject to retention of title clause
    2011-05-31

    Isher Fashions UK ("Isher") supplied Jet Star Retail Limited ("Jet Star") with goods. The contract for the supply of the goods contained retention of title provisions, but it was agreed between the parties that the contract implicitly gave Jet Star the right to deal with the goods despite Isher's claim to retention of title. The contract also gave Isher a right, by notice, to prevent Jet Star from selling or parting with possession of any goods supplied if Jet Star became the subject of formal insolvency proceedings.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Howes Percival LLP, Retail, Statute of limitations, Title retention clause, Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Location:
    United Kingdom
    Firm:
    Howes Percival LLP
    JSC BTA Bank v A [2010] EWCA Civ 1141: appointment of a receiver
    2011-06-08
    1. Introduction

    Most reading this will know that freezing orders are granted to prohibit defendants from disposing of or dissipating their assets in a way that will prevent the claimant from enforcing any judgment he obtains. If the defendant disobeys, he is at risk of contempt. But the primary purpose of contempt is to punish the defendant. Many claimants will simply be concerned to ensure that the defendant’s money is frozen.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Injunction, Breach of contract, Discovery, Holding company, Contempt of court, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Stanford, liquidations and the Serious Fraud Office
    2011-05-01

    In relation to insolvent liquidations under U.K. law, one of the primary objectives will be the implementation of an efficient process to preserve and recover assets for the benefit of the creditors. This is particularly so where there is a need to instigate costly litigation or cross-border recognition proceedings and where the liquidator will want increased assurances as to the likelihood that those steps will generate positive returns.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Injunction, Fraud, Money laundering, Liquidation, Liquidator (law), Prejudice, US Department of Justice, Serious Fraud Office (UK), Proceeds of Crime Act 2002 (UK), Court of Appeal of England & Wales
    Authors:
    Steven D. Richards
    Location:
    United Kingdom
    Firm:
    Jones Day
    Application of TUPE in an administration
    2011-05-03

    OTG v Barke is the latest case from the Employment Appeal Tribunal (EAT) to consider how the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) apply in the context of the sale of a business in administration. The case largely resolves the uncertainty in that context and affirms the general practice of administrators and purchasers of businesses from them.

    Filed under:
    United Kingdom, Employment & Labor, Insolvency & Restructuring, Litigation, Shepherd and Wedderburn LLP, Contractual term, Liquidation, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK), Court of Appeal of England & Wales, Employment Appeal Tribunal
    Location:
    United Kingdom
    Firm:
    Shepherd and Wedderburn LLP
    Compromising claims in liquidations without the consent of all creditors
    2011-05-11

    In the recent English Court of Appeal case of Rubin v Coote, the court allowed a liquidator to settle litigation without having obtained the agreement of all creditors to the compromise.

    The Facts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, MacRoberts LLP, Costs in English law, Debt, Consent, Liquidation, Liquidator (law), Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Authors:
    Alan Meek , Leon Breakey
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    Limiting indemnity rights when an insured is insolvent
    2011-04-18

    In a recent case, the court held that a party to a settlement agreement (in this case a broker) cannot restrict the indemnity it is providing so that the indemnity is not payable if the insured goes into administration, or liquidation, or undergoes some other insolvency event. The decision is important on its own facts. But it does also raise questions about the legitimacy of other clauses in insurance contracts which depend on whether or not the insured or reinsured has entered into any kind of insolvency event.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Litigation, CMS Cameron McKenna Nabarro Olswang LLP, Negligence, Reinsurance, Liquidation, Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Amit Tyagi , Jonathan Thorpe , Peter Wiltshire
    Location:
    United Kingdom
    Firm:
    CMS Cameron McKenna Nabarro Olswang LLP
    The 'balance sheet' test of corporate insolvency
    2011-04-05

    In the recent case of BNY Corporate v Eurosail[1], the Court of Appeal for the first time considered how the 'balance sheet' test of corporate insolvency in section 123(2) Insolvency Act 1986 (IA 1986) should be applied.

    Section 123(2) IA 1986 provides:-

    'A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company's assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.'

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Wedlake Bell, Interest, Debt, Liability (financial accounting), Legal burden of proof, Liquidation, Balance sheet, Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Richard Hewitt
    Location:
    United Kingdom
    Firm:
    Wedlake Bell
    Balance Sheet Test for insolvency - court looks at the bigger picture
    2011-04-06

    The Court of Appeal has confirmed the High Court's decision that the "Balance Sheet Test" (for whether a company is unable to pay its debts under Section 123(2) of the Insolvency Act 1986) cannot be reduced to a single formula or set of principles that apply to all companies.

    The Balance Sheet Test forms part of the provisions that regulate when a company may be compulsorily wound up by the Court.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Mills & Reeve LLP, Audit, Debt, Liability (financial accounting), Liquidation, Balance sheet, Public limited company, Insolvency Act 1986 (UK), Trustee, Court of Appeal of England & Wales, High Court of Australia
    Authors:
    Mary Prentice
    Location:
    United Kingdom
    Firm:
    Mills & Reeve LLP
    The point of no return - a balancing act
    2011-04-08

    In BNY Corporate Trustee Services Ltd v Eurosail UK 2007 - 3BL PLC & Ors, the English Court of Appeal has decided that the mere fact that a company’s aggregate liabilities exceed its assets may not render the company to be deemed unable to pay its debts under section 123(2) of the UK Insolvency Act 1986 (commonly referred to as the “balance sheet test”). The test is whether a company has reached a point of no return such that its state of affairs is not or is unlikely to continue having regard to its contingent and future liabilities.

    Filed under:
    United Kingdom, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Mayer Brown, Foreign exchange market, Interest, Swap (finance), Debt, Liability (financial accounting), Legal burden of proof, Liquidation, Balance sheet, Cashflow, Default (finance), Mortgage-backed security, Lehman Brothers, Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Sally Mui
    Location:
    United Kingdom
    Firm:
    Mayer Brown
    Who has the last say? The Court of Appeal upholds a liquidator’s decision despite creditor opposition
    2011-03-23

    In Rubin v Coote [2011] EWCA Civ 106 (09 February 2011) the Court of Appeal has upheld the decision of a liquidator to settle litigation against a former director of a company notwithstanding the opposition of the company’s creditors.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, BDB Pitmans LLP, Costs in English law, Leasehold estate, Standing (law), Liquidation, Liquidator (law), Insolvency Act 1986 (UK), Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Location:
    United Kingdom
    Firm:
    BDB Pitmans LLP

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