A recent High Court case involving unlawful loans to directors illustrates the potential pitfalls involved in calculating limitation periods, and the circumstances in which the usual six year statutory limitation period will not apply to a recovery claim against a fiduciary.
Facts
Broadside Colours and Chemicals Ltd was a family firm supplying dyes to the textile trade. The directors were Geoffrey Button, his wife Catherine Button, and their son James Button. Only the father and son were shareholders.
Following the Court of Appeal decision in their application to the Court for directions to enable them to identify client money and its traceable proceeds (as previously reported here), the administrators of Lehman Brothers International (Europe) sought further directions regarding the further work to be carried out, the evidence to be prepared and the identification of appropriate respondents and sought a protective costs order.
Isher Fashions UK ("Isher") supplied Jet Star Retail Limited ("Jet Star") with goods. The contract for the supply of the goods contained retention of title provisions, but it was agreed between the parties that the contract implicitly gave Jet Star the right to deal with the goods despite Isher's claim to retention of title. The contract also gave Isher a right, by notice, to prevent Jet Star from selling or parting with possession of any goods supplied if Jet Star became the subject of formal insolvency proceedings.
In a judgment issued in test cases, OTG Ltd v Barke and others, the EAT held that administration proceedings are not capable of coming within the insolvency exception to the normal business transfers rule.
- Introduction
Most reading this will know that freezing orders are granted to prohibit defendants from disposing of or dissipating their assets in a way that will prevent the claimant from enforcing any judgment he obtains. If the defendant disobeys, he is at risk of contempt. But the primary purpose of contempt is to punish the defendant. Many claimants will simply be concerned to ensure that the defendant’s money is frozen.
The Sinclair v Versailles1 decision has extinguished any prospect that a victim of a fraud has a proprietary claim to a fraudster’s secret profits. It also offers significant comfort to banks, insolvency practitioners and other potential recipients of trust funds by setting a high bar for whether a recipient person is “on notice” of a proprietary claim to those funds.
Nicola Jane Haworth (Bankrupt) v (1) Donna Cartmel (Trustee in Bankruptcy of Nicola Jane Haworth) (2) The Commissioners for HM Revenue & Customs
Case No. 3496 of 2009 in the High Court of Justice, Chancery Division, Manchester District Registry
Summary
In a recent case in relation to the liquidation of Echelon Wealth Management Limited ("E"), Lord Glennie has decided that upon removal as liquidator, a former liquidator may not retain from the assets of the liquidated company any sum as security for costs.
The Facts
S&C were appointed joint liquidators of E at a creditors meeting on 16 December 2008. At a creditors meeting on 22 July 2009, they were then removed from office with new joint liquidators being appointed.
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
Important news for those buying a business out of “pre-pack” administration. The Employment Appeal Tribunal (EAT) in Pressure Coolers v.