The English Court of Appeal decision in Caterpillar v John Holt & Company, and its analysis of “retention of title” and “no set-off” clauses, will be of interest to commodity traders, compliance officers and legal counsel in industries dealing with energy and natural resources internationally.

The Court of Appeal has ruled that the trustees of two occupational defined benefit (DB) schemes can use a particular mechanism, known as a Headway agreement, to maximise the amount of s.75 debt payable by the employers.

In the case of Sarjeant and others v Rigid Group Ltd, both schemes commenced winding up in 2000. No insolvency event had occurred before the winding up in either case. The applicable legislation at the relevant time required the s.75 debt to be calculated on the MFR basis.

Summary

Following the US case of Morning Mist Holdings when a Court of Appeals decided that COMI had to be analysed on the date of the Chapter 15 case petition, we look again at the case of Kemsley where the US bankruptcy court held that COMI had to be analysed on the date of the filing of the UK bankruptcy. We consider whether this could have affected the outcome of the Kemsley case and look at the factors used by the English and US Courts to interpret an individual debtor’s COMI.

Background

A recent decision by the Court of Appeal (CA) in West v Ian Finlay & Associates (a firm) will, in the words of one colleague, “add spice to negotiations”. 

The CA held that a net contribution clause in a professional appointment was effective in limiting liability. The CA held that the clause was both “crystal clear”, noting that the facts of the case did not permit an alternative interpretation, and fair, that is within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 and Unfair Contract Terms Act 1977. 

The High Court (David Donaldson QC) has held in Enta Technologies Limited v HMRC [2014] EWHC 548 (Ch), that where a winding-up petition was brought by HMRC based on the non-payment of tax raised in assessments and the taxpayer's appeal against those assessments was pending, the winding-up court should refuse to adjudicate on the merits of the appeal and should leave that question to be dealt with by the First-tier Tribunal (Tax Chamber) ('FTT').

Background

Key point

A winding up petition founded on a tax assessment, which is the subject of an appeal to the Tax Tribunal, should be dismissed or stayed pending the appeal.

The facts

Key points

• In order to rescind a winding up order the court must be satisfied that the circumstances of the case are materially different to those before the court that made the winding up order.
• A stay of a winding up order would not be made as an alternative route was available. 

Facts

Key points

• Section 306 of the Insolvency Act 1986 (“1986 Act”) provides that a bankrupt’s estate shall vest immediately in the trustee in bankruptcy and no registration is required to effect that vesting;
• A bankrupt’s tenancy had vested in the trustee so that the bankrupt was no longer the qualifying tenant for the purposes of enfranchisement under the Leasehold Reform Act 1967 (“1967 Act”).

The facts

Bristol Alliance Nominee No 1 Ltd v Bennett [2013] EWCA Civ 1626; [2013]PLSCS 316 (A/Wear UK Limited)

Background

The case relates to the insolvency of a women’s fashion retailer and their shops in Bristol and Leicester.

The Court of Appeal has decided that rent accruing during a period of administration should be treated as an expense of the administration, irrespective of the date on which it falls due for payment. Administration expenses are paid by administrators in priority to liabilities owed to holders of security.