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    Disclaimers: paper shield or your best protection?
    2017-03-27

    The UK Court of Appeal recently considered the liability of issuers to secondary market investors under the Misrepresentation Act 1967 (the “1967 Act”) in the case of Taberna Europe CDO II Plc v Selskabet (formerly Roskilde Bank A/S) (In bankruptcy) [2016] EWCA Civ 1262. The Court found that primary and secondary investors could potentially be entitled to rely on online content, such as product presentations, which have been published in a deliberate manner, particularly if the issuer directs investors to the content.

    Filed under:
    USA, Insolvency & Restructuring, Internet & Social Media, Litigation, Media & Entertainment, Reed Smith LLP, Court of Appeal of England & Wales
    Authors:
    Diane Roberts
    Location:
    USA
    Firm:
    Reed Smith LLP
    Supreme Court decision highlights importance of contract terms in protecting principal from agent’s insolvency
    2016-08-22

    The Supreme Court has held that a principal was entitled to recover payments collected by its agent on its behalf following the agent's insolvency: Bailey and another (Respondents) v Angove's PTY Limited (Appellant) [2016] UKSC 47.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Interest, Debt, Liquidation, Liquidator (law), Bill of lading, Constructive trust, Pro rata, Supreme Court of the United States, Court of Appeal of England & Wales, UK Supreme Court
    Authors:
    Gareth Keillor , Jade Hu
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    When an Asset is not an Asset
    2016-07-19

    The Court of Appeal has recently considered the status of contingent assets within the balance sheet test for insolvency in the context of a company’s inability to pay its debts. Under Section 123 Insolvency Act 1986, a company is deemed unable to pay its debts if its assets are less than its liabilities including contingent liabilities but nothing is said about the status of contingent assets.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Shareholder, Dividends, Beneficiary, Debt, Liability (financial accounting), Balance sheet, Liquidator (law), Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Susan Kelly
    Location:
    United Kingdom
    Firm:
    Squire Patton Boggs
    Documenting responsibility for contributing to DB schemes
    2016-07-20

    The Court of Appeal’s decision in the case of Heis v MF Global highlights the importance of documenting just who has responsibility for contributing to a defined benefit pension scheme.

    EIS AND OTHERS V MF GLOBAL UK SERVICES LTD (IN ADMINISTRATION) [2016] EWCA CIV 569, [2016] ALL ER (D) 125 (JUN)

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Clyde & Co LLP, Contractual term, Debt, Broker-dealer, Defined benefit pension plan, The Pensions Regulator (UK), MFG.com, Pension Protection Fund, Pensions Act 1995 (UK), Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Authors:
    Mark Howard
    Location:
    United Kingdom
    Firm:
    Clyde & Co LLP
    Equitable set-off
    2016-06-10

    Summary: Customers of a company in administration were entitled, as against a factor, to exercise equitable set-off in respect of entitlements to rebates that had arisen between the customers and the company notwithstanding the assignment of the customer’s debts to the factor.

    Bibby Factors Northwest Ltd v HFD Ltd [2015] EWCA Civ 1908 (17 December 2015)

    Background

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner, Court of Appeal of England & Wales
    Authors:
    Jamie Wiseman-Clarke , Quentin Gillespie
    Location:
    United Kingdom
    Firm:
    Bryan Cave Leighton Paisner
    Bibby Factors Northwest Limited v HFD Ltd [2015] EWCA Civ 1908
    2016-04-27

    The Court of Appeal upheld the finding at trial of HHJ Bird (sitting in the High Court) that save where there is fraud, a debtor is not legally obliged to volunteer information to an assignee regarding his arrangement with the assignor. The dispute arose because Bibby, a factor (and ‘Assignee’), purchased debts from Morleys Ltd (‘the Assignor’), owed to it by HFD Ltd and MCD Ltd (the ‘Customers’/‘Debtors’). The contract between the Assignor and Customers was such that the latter were entitled to a rebate, at the beginning of each calendar year, on purchases made.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Gatehouse Chambers, Debtor, Court of Appeal of England & Wales
    Authors:
    Jonathan Titmuss
    Location:
    United Kingdom
    Firm:
    Gatehouse Chambers
    Treatment of senior unsecured debt in European leveraged finance transactions: Court of Appeal confirms no duty to unsecured third party creditors on enforcement
    2016-03-01

    In our recent note “Treatment of senior unsecured debt in European leveraged finance transactions: the need for an intercreditor agreement”, which can be viewed here, we addressed the increase in flexibility in European financings to incur senior unsecured debt and the risk that the lack of any agreed intercreditor arrangement may impair senior secured lenders’ ability to realise recoveries from a European Credit

    Filed under:
    United Kingdom, Aviation, Banking, Insolvency & Restructuring, Litigation, White & Case, Unsecured debt, Court of Appeal of England & Wales
    Authors:
    Rob Bennett , Sally Koo
    Location:
    United Kingdom
    Firm:
    White & Case
    Court of Appeal rejects illegality defence in claim against liquidator
    2015-11-20

    The Court of Appeal has refused to allow a liquidator of a company that was the vehicle for a VAT fraud to rely on the defence of illegality in defending a claim for breach of duty under section 212 of the Insolvency Act 1986: Top Brands Ltd and others v Sharma (as former liquidator of Mama Milla Ltd) [2015] EWCA Civ 1140.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, White Collar Crime, Herbert Smith Freehills LLP, Fraud, Liquidator (law), Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Tom Henderson
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Freezing orders: when are payments made in the ‘ordinary course of business’?
    2015-10-20

    Summary

    On 14 October 2015, the Court of Appeal overturned a decision that two payments had been made in breach of a freezing order. The order prohibited the respondent to the freezing injunction application from dealing with or disposing of any of its assets other than in the ordinary and proper course of business. The Court held that the judge at first instance had taken too narrow a view in construing this exception and that, in light of the specific facts of the case, the freezing order had not been breached.

    Filed under:
    United Kingdom, Arbitration & ADR, Insolvency & Restructuring, Litigation, CMS Cameron McKenna Nabarro Olswang LLP, Court of Appeal of England & Wales
    Authors:
    Omar Qureshi , Louise Boswell , Jessica Foley
    Location:
    United Kingdom
    Firm:
    CMS Cameron McKenna Nabarro Olswang LLP
    Arbitrate before you litigate!
    2015-07-17

    Over the last seven months there has been a spate of cases dealing with the relationship between arbitration law and insolvency law.

    Winding-up petitions and arbitration clauses

    Filed under:
    United Kingdom, Arbitration & ADR, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Arbitration clause, Court of Appeal of England & Wales
    Authors:
    Susan Kelly , Siân Taylor
    Location:
    United Kingdom
    Firm:
    Squire Patton Boggs

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