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    Security from principal debtor does not preclude claim against guarantor
    2011-07-20

    The case of White v Davenham Trust Ltd, has reaffirmed that a creditor can choose its own method of enforcing a debt which has been guaranteed even where it might hold security for that debt.

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Surety, Debtor, Interest, Debt, Liability (financial accounting)
    Authors:
    Greg Standing , Ian Weatherall
    Location:
    United Kingdom
    Firm:
    Gowling WLG
    Great Lakes - Chapter 11 bankruptcy
    2011-07-21

    In relation to the Great Lakes UK Limited Pension Plan a settlement was again reached before a full hearing with the Determination Panel could take place as reported by tPR on 13 July 2011.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, BDB Pitmans LLP, Bankruptcy, Debt, Liability (financial accounting), Sponsor (commercial), Parent company, Buyout, Pensions Act 2004 (UK), Trustee
    Authors:
    Parminder Latimer
    Location:
    United Kingdom
    Firm:
    BDB Pitmans LLP
    Directors’ liability: the case of directorial responsibility following Roberts v Frohlich
    2011-06-23

    The liquidator of Onslow Ditching Ltd (ODL), sought a declaration against two directors (on three grounds), seeking damages/fines or a contribution of assets from each director for:

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Locke Lord LLP, Unsecured debt, Breach of contract, Fiduciary, Liability (financial accounting), Liquidation, Balance sheet, Liquidator (law), High Court of Justice (England & Wales)
    Authors:
    Alexandra Townsley
    Location:
    United Kingdom
    Firm:
    Locke Lord LLP
    TUPE transfers from insolvent companies: Secretary of State does not foot the bill if employee is dismissed post-transfer
    2011-06-27

    In the recent case of Pressure Coolers Ltd v (1) Mr J Molloy; (2) Maestro International Limited; and (3) Secretary of State for Trade and Industry, the Employment Appeal Tribunal had to decide who should pay an employee’s basic award and notice pay following his unfair and wrongful dismissal after a “pre pack” TUPE transfer from his insolvent employer.

    Filed under:
    United Kingdom, Employment & Labor, Insolvency & Restructuring, Litigation, Kennedys Law LLP, Wage, Wrongful dismissal, Debt, Liability (financial accounting), Liquidation, Unfair dismissal, Ageism, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK), Transfers of Undertakings Directive (2001/23/EC), Employment Rights Act 1996 (UK), Employment Appeal Tribunal
    Authors:
    Allan Finlay , Matthew Leake
    Location:
    United Kingdom
    Firm:
    Kennedys Law LLP
    Settlement reached in first UK Pensions Regulator “Contribution Notice” case
    2011-06-14

    The UK Pensions Regulator (the Regulator) has just announced that it has reached a settlement with the intended target of its first Contribution Notice (CN), with the result that the CN has been issued, but for a far lower amount than the Regulator originally sought. This case gives important guidance on the situations in which the Regulator believes it will be justified in issuing a CN, and on the potential liabilities targets may face.

    The Moral Hazard Powers

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Letter of credit, Board of directors, Liability (financial accounting), Defined benefit pension plan, Parent company, Secured loan, The Pensions Regulator (UK), Pension Protection Fund, Chief executive officer, Trustee
    Authors:
    Catherine Drinnan
    Location:
    United Kingdom
    Firm:
    Latham & Watkins LLP
    Unwrapping English pre-packaged administrations: a guide to “pre-packs” in England
    2011-05-23

    Introduction

    Filed under:
    United Kingdom, Insolvency & Restructuring, Chadbourne & Parke LLP, Shareholder, Debtor, Unsecured debt, Marketing, Debt, Liability (financial accounting), Secured creditor, Liquidator (law), Valuation (finance), Insolvency Act 1986 (UK)
    Authors:
    Alastair Goldrein
    Location:
    United Kingdom
    Firm:
    Chadbourne & Parke LLP
    “Sword of Damocles:” pensions in an English insolvency
    2011-05-23

    Introduction

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Shareholder, Unsecured debt, Retirement, Liability (financial accounting), Tax deduction, Holding company, Investment funds, The Pensions Regulator (UK), Lehman Brothers, Insolvency Act 1986 (UK), Pensions Act 2004 (UK), High Court of Justice (England & Wales)
    Authors:
    Alastair Goldrein
    Location:
    United Kingdom
    Firm:
    Chadbourne & Parke LLP
    The 'balance sheet' test of corporate insolvency
    2011-04-05

    In the recent case of BNY Corporate v Eurosail[1], the Court of Appeal for the first time considered how the 'balance sheet' test of corporate insolvency in section 123(2) Insolvency Act 1986 (IA 1986) should be applied.

    Section 123(2) IA 1986 provides:-

    'A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company's assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.'

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Wedlake Bell, Interest, Debt, Liability (financial accounting), Legal burden of proof, Liquidation, Balance sheet, Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Richard Hewitt
    Location:
    United Kingdom
    Firm:
    Wedlake Bell
    Balance Sheet Test for insolvency - court looks at the bigger picture
    2011-04-06

    The Court of Appeal has confirmed the High Court's decision that the "Balance Sheet Test" (for whether a company is unable to pay its debts under Section 123(2) of the Insolvency Act 1986) cannot be reduced to a single formula or set of principles that apply to all companies.

    The Balance Sheet Test forms part of the provisions that regulate when a company may be compulsorily wound up by the Court.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Mills & Reeve LLP, Audit, Debt, Liability (financial accounting), Liquidation, Balance sheet, Public limited company, Insolvency Act 1986 (UK), Trustee, Court of Appeal of England & Wales, High Court of Australia
    Authors:
    Mary Prentice
    Location:
    United Kingdom
    Firm:
    Mills & Reeve LLP
    The point of no return - a balancing act
    2011-04-08

    In BNY Corporate Trustee Services Ltd v Eurosail UK 2007 - 3BL PLC & Ors, the English Court of Appeal has decided that the mere fact that a company’s aggregate liabilities exceed its assets may not render the company to be deemed unable to pay its debts under section 123(2) of the UK Insolvency Act 1986 (commonly referred to as the “balance sheet test”). The test is whether a company has reached a point of no return such that its state of affairs is not or is unlikely to continue having regard to its contingent and future liabilities.

    Filed under:
    United Kingdom, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Mayer Brown, Foreign exchange market, Interest, Swap (finance), Debt, Liability (financial accounting), Legal burden of proof, Liquidation, Balance sheet, Cashflow, Default (finance), Mortgage-backed security, Lehman Brothers, Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Sally Mui
    Location:
    United Kingdom
    Firm:
    Mayer Brown

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