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    Silentnight - sweet dreams for the pensions regulator
    2011-05-13

    The story of the Silentnight restructuring has featured in the press today. There have been calls for the Pensions Regulator to use its anti-avoidance powers under the Pensions Act 2004 to compel HIG Europe to pay more towards the considerable deficit of the Silentnight Pension Scheme, following the purchase of Silentnight out of administration by the private equity firm last Saturday. Earlier this year, Silentnight had failed to obtain the PPF's approval to a Creditors Voluntary Arrangement aimed at addressing its historic debt, including a pensions deficit of around £100m.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Herbert Smith Freehills LLP, Contractual term, Shareholder, Debtor, Unsecured debt, Debt, The Pensions Regulator (UK), Pension Protection Fund, Pensions Act 2004 (UK), Trustee, High Court of Justice (England & Wales)
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton , Naveed Soomro
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Scottish court rules that trustee claims are admissible in the winding up of an insolvent participating employer
    2011-02-01

    A claim by trustees against an insolvent participating employer (who has ceased to participate in the pension scheme) for its share of the scheme deficit is a contingent obligation at the date of winding up and is admissible in the winding-up. This follows the decision by the Outer House of the Court of Session in Scotland in Burton, Re Direction of Assets [2010] CSOH 174.

    Filed under:
    United Kingdom, Scotland, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Share (finance), Shareholder, Debt, Liquidation, Buyout, Trustee, Court of Session
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Treasury consultation on a Special Administration Regime for investment banks
    2010-11-23

    On 16 September 2010 the UK Treasury published a consultation paper seeking views on its proposals for a new Special Administration Regime (SAR) for investment firms. The Consultation included draft regulations that will implement the SAR (the Draft Regulations).

    The Consultation was prompted by the failure of Lehman Brothers in 2008 which posed (and continues to pose) serious challenges for insolvency regimes around the world.

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, Herbert Smith Freehills LLP, Public consultations, Investment banking, Investment company, HM Treasury (UK), Lehman Brothers, Insolvency Act 1986 (UK), Banking Act 2009 (UK)
    Authors:
    Stephen Gale , Laurence Elliott
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Non-disclosure of corporate re-organisation and breach of warranty (again)
    2010-11-10

    By a judgment handed down on 26 October 2010 in Sugar Hut Group Ltd & Ors v Great Lakes Reinsurance (UK) Plc & Ors [2010] EWHC 2636 (Comm), Mr Justice Burton in the Commercial Court held that insurers were entitled to avoid, for a material non-disclosure of a corporate re-organisation, a policy which could otherwise have covered losses arising from a fire at the premises of the insureds.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Herbert Smith Freehills LLP, Shareholder, Breach of contract, Reinsurance, Public limited company, Non-disclosure agreement, Warranty, Underwriting, Subsidiary, AXA, High Court of Justice (England & Wales), Commercial Court (England and Wales)
    Authors:
    Alexander Oddy , Greig Anderson
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    FSD determination affecting Lehman Brothers scheme
    2010-09-30

    On 17 September, the Pension Regulator's Determinations Panel announced that it had issued a determination that six companies within the Lehman Brothers group (including the group's main operating companies in the UK as well as the US parent Lehman Brothers Holding Inc.) should provide financial support to the Lehman Brothers Pension Scheme. This followed a hearing on 8-9 September 2010.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Joint and several liability, Defined benefit pension plan, Subsidiary, Lehman Brothers, Pensions Act 2004 (UK)
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    A breathing space for distressed companies: proposals for a statutory restructuring moratorium
    2010-08-26

    The Insolvency Service recently opened a consultation (the "Consultation") on its proposals for a restructuring moratorium. Under the proposals, eligible companies satisfying certain qualifying conditions would be able to apply to court for a moratorium to prevent creditor action (a "Moratorium"). The Moratorium is not intended to be an alternative to formal insolvency for companies that are already insolvent but is intended to support viable companies reach a compromise with their creditors.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Herbert Smith Freehills LLP, Debt, Moratorium, Refinancing, Leverage (finance)
    Authors:
    Stephen Gale , Kevin Pullen , Laurence Elliott , Simon Chadney
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Regulator’s Determinations Panel signals intent to issue financial support direction
    2010-08-04

    On 8 July, the Pensions Regulator’s Determinations Panel published a determination to issue a financial support direction against 25 companies in the Nortel group in Canada, the US, Europe and Africa.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Herbert Smith Freehills LLP, Legal personality, Marketing, The Pensions Regulator (UK), Pensions Act 2004 (UK)
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    The House of Lords sets aside order for examination of foreign officer of judgment debtor
    2010-06-03

    In a recent opinion (Masri v Consolidated Contractors International Co. SAL and others [2009] UKHL 43) handed down in the final days of the House of Lords, their Lordships clarified a point which may be of some significance for successful claimants seeking to enforce a Court order against corporate defendants.  

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Fraud, Debt, Contempt of court, House of Lords, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Auditors’ liability in fraud cases: House of Lords rules in Moore Stephens v. Stone & Rolls Limited
    2010-06-03

    In a decision handed down just before the end of term, auditors have won an important House of Lords ruling limiting their liability in cases where a “one man” company is used as a vehicle for fraud. The Law Lords dismissed by a majority of three to two a negligence claim brought against an audit firm for failing to detect a massive fraud at Stone & Rolls, a trading company that fell in the late 1990s – holding that the liquidators could not bring a claim for damages when the company itself was responsible for the fraud.

    Background

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Bankruptcy, Letter of credit, Fraud, Audit, Negligence, Liquidator (law), Commodity market, House of Lords, Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    The defence and settlement of third party claims
    2010-03-30

    In Clare Horwood & Others v Land of Leather Limited (In Administration) and Zurich Insurance Plc the Commercial Court was asked to consider in the context of a claim under the Third Parties (Rights Against Insurers) Act 1930 whether a compromise agreement entered into by an insured without the insurer's specific instructions in writing was in breach of a policy term. Under the compromise agreement, the insured had released a third party from an obligation to indemnify it in respect of various personal injury claims.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Product Regulation & Liability, Herbert Smith Freehills LLP, Contractual term, Condition precedent, Breach of contract, Consideration, Good faith, Commercial Court (England and Wales)
    Authors:
    Alexander Oddy , Charles Weston-Simons
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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