Kandola v Mirza Solicitors LLP [2015] EWHC 460 (Ch)

A recent decision of HHJ Cooke in the Chancery Division of the High Court in Kandola v Mirza Solicitors LLP [2015] EWHC 460 (Ch) has provided some useful guidance on solicitors' duties to advise as to the risk of insolvency of the vendor when acting for purchasers in property transactions where deposits are held as agents for the vendor. It also provides guidance on solicitors' duties generally when advising on risks in transactions.

The Facts

Of general interest is the appeal in the case of Horton v Henry, on which we reported in our January 2015 update. In Horton, the High Court declined to follow a previous ruling, and decided that a bankrupt could not be compelled to access his pension savings to pay off creditors.

The published judgment in Abbey Forwarding[1] will not make for comfortable reading for HMRC. Having instigated the winding up of a profitable business, which led to the dismissal of 23 employees, and accused  innocent directors of fraud, HMRC then withdrew all assessments made against the company and attempted to avoid undertakings it had given to the court when seeking the original winding up order.

This article provides an essential update for insolvency practitioners on the proposed Insolvency Rules 2015 and the end of the insolvency exemption on Conditional Fee Agreements.

The end of the CFA?

The High Court has held that a bankrupt’s unexercised rights to draw his pension did not represent income to which the bankrupt was entitled and so refused to make an income payments order, contradicting the controversial decision in Raithatha v Williamson which held that a bankrupt’s right to draw income from a personal pension may be subject to an income payments order even if the individual has yet to draw his pension.

Horton v Henry [2014] EWHC 4209 (Ch)

With the Insurance Act 2015 receiving Royal Assent on 12 February 2015, we take a look at the consequential amendments to the Third Parties (Rights Against Insurers) Act 2010 (the “2010 Act”). These amendments were aimed at rectifying the failure to include certain insolvency circumstances in the original 2010 Act (which due to these defects was not brought into force after Royal Assent) and it is hoped that the act may finally come into effect by autumn 2015.

Background

In the recent decision of Horton v Henry [2014] EWHC 4209 (Ch) the High Court held that a Bankrupt’s unexercised rights to draw his pension did not represent income to which the Bankrupt was entitled within the meaning of section 310(7) of the Insolvency Act 1986 and so refused to make an Income Payments Order. This contradicted the controversial decision in Raithatha v Williamson [2012] EWHC 909 (Ch) and has created uncertainty as to which is the correct position. The Horton case is being appealed.

We welcome the Government’s announcement today that the insolvency exemption to the Jackson reforms will remain in place for the foreseeable future, although it will be reviewed later in the year.

Following the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, success fees under “No Win, No Fee” conditional fee agreements are generally no longer recoverable from opponents and neither are premiums under after the event (ATE) legal expenses insurance policies.

Congratulations to all those who lobbied government to extend the carve out for insolvency from the restrictions imposed by the Jackson Reforms. We have just received confirmation from the Ministry of Justice that the exemption granted to Insolvency Practitioners has been extended indefinitely.

A real shot in the arm for Insolvency Litigators across the UK.

House of Commons: Written Statement (HCWS303)

Ministry of Justice

The Government has, today, announced that the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 reforms for insolvency proceedings are being delayed for the time being, and will therefore not come into force on 1 April 2015.