Céline Domenget Morin and Loris Julia, Goodwin Procter LLP

This is an extract from the 2023 edition of GRR's Europe, Middle East and Africa Restructuring Review. The whole publication is available here.

Dispute Resolution analysis: Following a liability trial, an unfair prejudice petition under section 994 of the Companies Act 2006 has been dismissed. None of the alleged instances of unfair prejudice directed against the Respondents was made out.

Pickering v Hughes and ors [2022] EWHC 3359 (Ch)

What are the practical implications of this case?

Banks often take security for the loans they advance – doing so gives them some additional protection if a borrower fails to repay the loan when due. Where the borrower is a company, that security can take the form of a mortgage, a security assignment, a pledge, lien, or a charge. In this short article, we explain what a charge is and the differences between a fixed and floating charge.

But firstly, what is a charge?

Lenders often attempt to limit what a borrower can do outside the ordinary course of business by negotiating contractual protections. Some of these provisions are designed to make the borrowers bankruptcy remote by, for example, requiring the borrower’s Board to include an independent director whose consent is required for a bankruptcy filing. Others, as was the case we discuss here, however, go further by including contractual rights that limit a borrower’s ability to file for bankruptcy without the lender’s consent.

Irish company law provides that if a charge granted by a company is not registered in the Companies Registration Office (CRO) within 21 days of its creation, it is void against a liquidator and any creditor of the company. There is a duty imposed on a company which grants a charge to register the charge in the CRO but the creditor taking the charge can also do so.

Diamond Rock Developments Ltd (the Company) granted a mortgage over a property. That mortgage was registered in the Land Registry but was not registered in the CRO.

Mark Fine, Aymen Mahmoud and Sunay Radia, McDermott Will & Emery

This is an extract from the 2023 edition of GRR's Europe, Middle East and Africa Restructuring Review. The whole publication is available here.

The High Court has recently granted Sapura Energy Bhd and its 22 subsidiaries (“Sapura Entities”) a fresh order to hold court-convened meetings with creditors within a period of three months. A restraining order was also granted for the same period. By now, the Sapura Entities would have been granted 3 restraining orders which stretches out to a total period of 15 months.

In legal parlance, the term “standing” embraces several discrete doctrines that govern the capacity of a party to sue and appear before a particular court. These concepts' fluidity should not obscure their importance: a party’s standing is a perpetual jurisdictional question, open to review throughout the lifespan of a particular case or matter and at every appellate level.

Types of Standing

Two Generally Applicable Forms

Mehers v Khilji [2023] EWHC 298 (Ch) is an interesting case about the bankruptcy “use it or lose it” provision enshrined in s 283A Insolvency Act 1986. The provision gives a trustee in bankruptcy three years to decide what, if anything, to do about an interest in a property which is the home of the bankrupt, the bankrupt’s spouse or civil partner, or a former spouse or civil partner of the bankrupt and which forms part of the bankrupt’s estate.

Industry participants who are close watchers of the different States’ and Territories’ security of payment regimes may have noticed a divergence between NSW and Victorian security of payment law in relation to failing corporate claimants. A recent NSW case regarding a head contractor’s unsuccessful challenge to the continuation of a deed of company arrangement may perpetuate a divergence in security of payment law in the context of insolvency.

Background – NSW law