Having successfully obtained judgment for your client in a case where your firm of solicitors is acting under a conditional fee agreement (CFA), it is only natural that thoughts will turn to the firm’s own impending financial reward. But the terms of a CFA, negotiated at the outset of the case, can prove to be a barrier to their underlying commercial purpose: payment by result.

Section 262(1) of the IA 1986 provides that a debtor, creditor or nominee may apply to the court where: (a) a voluntary arrangement approved by a creditors’ meeting summoned under section 257 unfairly prejudices the interests of a creditor of the debtor, or (b) there has been some material irregularity at or in relation to such a meeting. 

Khandanpour v Chambers [2019] EWCA Civ 570

Should relief from sanctions be granted where a judgment debtor purports to appropriate monies paid to satisfying a procedural condition for setting aside a default costs order, but the creditor purports to appropriate the monies instead to the judgment debt?

Background

How deep is the “pool of facts in which it is permissible to fish for the basis of the new cause of action” if a party wishes to benefit from the ‘relation back’ doctrine when calculating limitation periods? The Court of Appeal gives guidance on the meaning of “the same or substantially the same facts” for the purpose of CPR r 17.4(2).

Background

This was a conjoined appeal alongside Bresco v Lonsdale. In this case, Cannon and Primus had already participated in an adjudication, with the decision of the adjudicator favouring Primus. Primus would later enter into a Company Voluntary Arrangement.

The CVA was made on the basis that, although Primus was insolvent at the time, it would be able to satisfy its creditors if it were able to recover from Cannon and other third parties through litigation and adjudication. This was preferable to liquidation.

With the Court of Appeal’s decision in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd just a few weeks old, it is hardly surprising that people are looking again at the relationship between insolvency law and adjudication, noting that in cases of liquidation where parties have a cross claim, construction law defers to insolvency law.

This was clearly illustrated in Gregg Nowak Ltd v CSS Electrical Distributors Ltd, which came before HHJ Bailey earlier this month.

Introduction

The recent decision of Andrew Burrows QC, sitting as a Judge of the High Court, in Palliser Limited v Fate Limited (In Liquidation) [2019] EWHC 43 (QB), is a useful reminder of the difficulties that can arise where one party (here a tenant) relies on another (its landlord) to take out insurance.

The Facts

In 2010, a fire started at the ground floor restaurant owned and operated by a company called Fate Limited (“Fate”). It was not in dispute that the fire was caused by Fate’s negligence.

This case concerned both the appeal in Bresco v Lonsdale and Cannon Corporate v Primus Build. The present case comment is only concerned with the former.

Background

Bresco appealed to set aside the order of an injunction from Fraser J. That injunction prevented the continuation of an adjudication in which Bresco and Lonsdale (in liquidation) sought sums from each other in claims and cross-claims.

Insolvency Set-Off and Construction Contract Adjudications in light of Bresco Electrical Services Ltd (in liquidation) v Michael J Lonsdale (electrical) Ltd; Cannon Corporate Ltd v Primus Build Ltd [2019] EWCA Civ 27

Re SHB Realisation Ltd (formerly BHS Ltd); Wright and another (as joint liquidators of SHB Realisations Ltd (formerly BHS Ltd)) v Prudential Assurance Companies Ltd [2018] EWHC 402 (Ch); [2018] All ER (D) 58 (Mar)

Synopsis