Key takeaways

The Court of Appeal has overturned a High Court decision granting a non-party costs order against an insolvent company’s director and majority shareholder. The court cited the claimant’s failure to warn the non-party of its intention to seek such an order as fatal to the application: Sony/ATV Music Publishing LLC v WPMC Ltd (in liquidation) [2018] EWCA Civ 2005.

Brent crude’s 18-month slide from above $110bbl to a January 2016 low of under $30bbl led to a number of high-profile North Sea upstream restructurings. This article considers what we can learn from recent cases and how they can inform the approach of companies, lenders, bondholders and restructuring professionals in future cases in the sector.

The New South Wales Court of Appeal has, in a decision that has surprised many practitioners, dismissed an appeal which challenged the composition of classes in the creditors’ scheme of arrangement involving Boart Longyear Limited.1

In a recent judgment, the Court of Appeal has held that trustees in bankruptcy could not waive legal professional privilege of a bankrupt, even though (i) the trustees in bankruptcy were entitled to take possession of the documents in which the privileged information was contained and (ii) the Insolvency Act 1986 provides generally that trustees in bankruptcy can exercise any power in respect of a bankrupt's property that the bankrupt himself could have exercised: Avonwick Holdings

Snapshot

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.

The Supreme Court has unanimously upheld a Court of Appeal decision refusing to strike out a claim by a “one-man” company in liquidation, which had been the vehicle for a VAT fraud, against its former directors and overseas suppliers alleged to have been involved in the fraud: Jetivia SA v Bilta (UK) Limited [2015] UKSC 23 (see our post on the Court of Appeal decision 

A recent Court of Appeal decision has confirmed that the usual contractual rules, including as to remoteness of damage, apply by analogy to the assessment of compensation under a cross-undertaking in damages in a freezing order. However, there is also room for exceptions, given that there is in fact no contract: Hone and others v Abbey Forwarding Ltd and another[2014] EWCA Civ 711.

In the context of joint liquidators’ applications for documents “belonging to” the company or “relating to” its affairs (under sections 324 and 326 of the Insolvency Act 1986), the High Court confirmed that English law applied to determine whether documents could be withheld by the Luxembourg lawyers who were respondents to the application.