On 1 May 2009, PricewaterhouseCoopers LLP (the "Administrators") submitted an Ordinary Application to the High Court, seeking directions concerning the obligations of Lehman Brothers International (Europe) (In Administration) ("LBIE"), in relation to the handling of client money received by it prior to entering into administration (the "Application"). A copy of the Application can be found here.

A question facing many landlords is whether, when a tenant company faces insolvency and shows no intention of continuing to trade from the premises, they should take back the property and seek to relet it?

There are several key issues here, including:

• rates liability
• mitigating losses
• ability to recover from third parties and former tenants.

A landlord's decision has often turned on the type of insolvency faced by the tenant.

If a liquidator disclaims the lease:

The courts have the power to and increasingly will make a civil restraint order where an individual persistently issues claims that are totally without merit.

Background

The law in relation to landlord's hypothec underwent significant changes on 1 April 2008 when the Bankruptcy and Diligence (Scotland) Act 2007 abolished sequestration for rent and instead provided that the hypothec was to rank as a security in an insolvency procedure.

Since 1 April 2008 certain issues have arisen out of ambiguities in the legislation. These issues have become apparent particularly in administrations. This note looks at:

The Employment Appeals Tribunal (EAT) has decided that the sale of a business by way of a pre-pack administration[1] did not result in a transfer of employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006, (TUPE Regulations or TUPE).

TUPE Regulations

Summary

A recent court decision confirmed that transparent pre-pack sales can be used where they are in the best interests of the creditors as a whole. The court ruled that:

An employment appeal tribunal has ruled that TUPE does not apply to all sales by administrators. On this view, whether TUPE applies will depend on the objectives of the administrator when appointed. In this case it was clear from the outset that continuing to trade was not viable and an immediate sale of the company’s assets was required to secure the best outcome for creditors. That put the administration in the category of “terminal” insolvency proceedings, for which a complete exemption from TUPE applies.

When can shareholders also have employee status?

In the matter of Bernard L Madoff Investment Securities LLC [2009] EWHC 442 (Ch), Mr Justice Lewison granted an application for the transfer of personal data in the possession of the joint provisional liquidators of a UK subsidiary to the trustee in bankruptcy of its parent company in the US, Bernard L Madoff Investment Securities LLC. The application was granted on the basis that it was necessary for reasons of substantial public interest.

Implications of the recent decision of the High Court in Re Global Trader Europe Limited (In Liquidation) regarding the application of the FSA’s client money rules.