In light of the radically and rapidly changing face of bricks and mortar retail, cases providing guidance on the way in which liabilities are to be dealt with in the course of the restructuring / insolvency process are extremely valuable not only for stakeholders and practitioners dealing with the consequences of those processes but also to those guiding and devising the strategies in the first instance.

Wright and Rowley v Prudential Assurance Company Limited is one such case arising out of the collapse of the British Home Stores (‘BHS’) retailing group in 2016.

The Facts

Mr Brown was declared bankrupt on 12 May 2016, following possession proceedings and costs order against him which had not been paid. Mr Brown did not accept that the original litigation leading to his bankruptcy was valid, and as a result did not accept that the bankruptcy proceedings were valid either. Mr Brown represented himself at all hearings and refused legal representation or assistance.

In a year fast becoming dubbed the “year of the CVA” in the retail sector, there was a cautionary tale for insolvency practitioners following the recent High Court judgment in Re SHB Realisations Ltd (formerly BHS ltd (in liquidation).

The timeline of the case

This article was first published in Butterworth's Journal of International Banking & Financial Law. To access a copy click here. 

Key Points

In January this year, construction giant Carillion entered into liquidation. In a sense its demise was sudden – the firm entered straight into liquidation rather than the more familiar administration procedure, meaning it had no meaningful assets that gave any prospect of the business, or any part of it, continuing as a going concern. But in another sense it was expected: a large failure of this type had been expected by industry watchers for some time.

The Supreme Court has recently held that directors who have caused company property to be transferred to another company under their control may be liable to restore the proceeds even after expiry of the six-year limitation period.

Mr and Mrs Fielding were directors and majority shareholders of Burnden Holdings (UK) Ltd ("BHUK"), a holding company with trading subsidiaries including Vital Energi Utilities Ltd ("Vital Energi").

Following on from a number of recent high profile corporate failures, the Government has issued a consultation focused on specific issues concerning companies which are insolvent or approaching insolvency.

Below is a summary of the areas under consultation. The full consultation can be found here.

The High Court held that "final determination" signifies the very last stage of any proceedings, without the chance to appeal. Sberbank were therefore still bound by their undertaking to take no further steps in an arbitration against the Company.

The Facts

This case is the latest twist in the ongoing saga of failed fintech "unicorn" Ve Interactive ("Ve"), who entered Administration in April 2017. Certain of Ve's creditors made an application to replace its Administrators, from Smith & Williamson LLP, with new Administrators from Deloitte.

In Ziggurat (Claremont Place) LLP v HCC International Insurance Company plc [2017] EWHC 3286 (TCC) the court considered a claim under an amended ABI Model Form Guarantee Bond.

As a result of a bespoke clause the Contractor's insolvency was enough to trigger recovery under the Bond, but if a breach of contract was required, the Contractor was in breach of the contract by failing to pay the amount due to the Employer following insolvency.