Last year, the Ministry of Justice published its statistics for judicial and court activity in England and Wales for 2014. In this note, we take a look at the 2014 figures and highlight emerging litigation trends.

Our own enquiries into professional negligence claims for the first three quarters of 2015 show that claims numbers are likely to be broadly similar to those for 2014 and 2013. We intend to follow this note with an update after the Ministry of Justice publishes its own figures for the whole of 2015 later this year.

The recent case of Oraki v Bramston and Defty [2015] EWHC 2046 (Ch) concerned former bankrupts' claims of professional negligence against their former trustees in bankruptcy (“the Trustees”). In dismissing the claims, the High Court held that the Trustees did not owe a common law duty of care to the bankrupts.

Patrick Hill and Declan Finn of DAC Beachcroft LLP, who acted on behalf of the successful Trustees, discuss the case and consider its implications for trustees in bankruptcy.

Background

A party on the receiving end of an adjudication is usually in a difficult position. Its situation is only made worse if the referring party is insolvent.

In such a situation, if the adjudicator makes an award in favour of the insolvent company the chances of subsequently recovering any sums awarded in litigation are very limited. While a stay to enforcement may be available, there are costs associated with obtaining a stay which will probably also be irrecoverable.

Unlawful Means Conspiracy

A recent Court of Session case has made clear that a Scottish court cannot wind up or make an administration order in respect of an English registered company, and the same applies to English courts and Scottish companies.

The English Court of Appeal has recently decided that a corporation that held shares in a company remained a shareholder notwithstanding the shareholding company's dissolution.

BWE Estates Limited had two shareholders: an individual named David who held 75% of its shares and a company, Belvedere Limited, which held the remaining 25%. Although Belvedere was dissolved in 1996, it remained listed as a shareholder in BWE's share register.

In the English High Court, the joint administrators of four English companies within the former Lehman Brothers group sought directions from the Court in respect of a proposed settlement. The settlement would put to rest substantial inter-company claims including those at issue in the 'Waterfall III' proceedings.

This case clarifies that the Third Parties (Rights Against Insurers) Act 2010 (the 2010 Act) does not apply retrospectively, such that the Third Parties (Rights Against Insurers) Act 1930 (the 1930 Act), and only the 1930 Act, will continue to apply in circumstances in which both (i) the insured's insolvency occurred; and (ii) the insured's liability was incurred, prior to 1 August 2016.

A case of two companies, one incorporated in Dubai and the other in England, involved in a network of businesses producing contrived fancy colour diamond valuations were eventually wound up by English courts in the interest of the public.

Richards J provided directions on issues brought forward by administrators including:

• the treatment of interest

• in the context of various provable and non-provable debts.

The newest in the series of judgments to deal with interest arising out of creditors’ claims in the administration of Lehman Brothers International (Europe) (LBIE), this latest instalment sought to deal with six supplemental issues on which the administrators sought directions.

One interesting discussion related to: