There has been recent high-level review of the application of the doctrine of ex turpi causa to claims involving fraudulent directors, in the context of insolvency litigation. The doctrine defined at its simplest is that no action can be founded on illegal or immoral conduct – a legal form of fair play. In October 2014 the Supreme Court heard the appeal in Jetivia SA v Bilta (UK) Limited (Bilta).

Two recent decisions of the UK courts concern UK liquidation and administration of foreign companies

Refusal to Wind-Up Foreign Companies: Re Buccament Bay Limited [2014] EWHC 3130 (Ch)

The High Court of England and Wales may refuse to exercise its discretion to wind up companies incorporated abroad where there would be little likelihood of the petitioners deriving benefit from the winding-up.

We have become used to a regular stream of decisions in which the courts are prepared to grant administration or winding up orders in respect of overseas companies which have COMI or an establishment in the UK. The decision inRe Buccament Bay Limited and another [2014] EWCH 3130 is a rare exception in which the court has refused to exercise its discretion.

The background

The English Court of Appeal dismissed an appeal brought against a recent High Court decision to stay a winding-up petition in favour of arbitration proceedings, in Salford Estates (No. 2) Limited v Altomart Limited [2014] EWCA 575 Civ.

Key Point

An administrator appointed under a qualifying floating charge can "adopt" an existing winding up petition for the purposes of liquidating the company where the benefit to the creditors of the insolvent estate is manifest on the facts.

Facts

Key Point

The liquidation of an agent for service appointed by a Borrower under a loan agreement did not prevent the Lender from validly serving process on the Borrower by delivering documents to that agent.

The facts

A loan agreement contained the following clause:

"Service of process. Without prejudice to any other mode of service allowed under any relevant laws, each Borrower -

Key point

An English winding up does not cease to have effect when an overseas company is dissolved under the law of its state of incorporation.

The facts

Agrenco Madeira – Comercio Internacional LDA (the "Company") was incorporated under the laws of Portugal in March 2004. The Company presented a winding up petition in England in August 2009. Its centre of main interests was in Brazil and therefore the EC Regulation on Insolvency Proceedings did not apply. The Company was wound up in England as an unregistered company in October 2009.

Key point

Only a current liquidator or a current creditor has standing in an English liquidation to pursue a claim under  section 212 of the Insolvency Act 1986 ("IA 86"). A former liquidator has no standing to apply to court to expunge a proof of debt (Insolvency Rule 4.85).

The facts

Re Christophorus 3 Limited [2014] EWHC 1162 (Ch)

Insolvent Defendants

Corporate Insolvency

Dissolution

1. Corporate bodies (limited companies or LLPs) have a separate legal identity that ceases to exist upon dissolution. Dissolution can occur, broadly speaking, in two ways, one is at the end of the process of winding up (whether voluntary or compulsory) and the other is by the process of striking off the Register of Companies 

or limited liability partnerships. The latter occurs either as a result of the company’s