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    What not to miss out when you are pursuing a fraudulent trading claim
    2018-02-06

    The Facts

    A liquidator applied for permission to amend his claim for fraudulent trading. The claim against the respondents related to purported defrauding of HMRC for non-payment of VAT.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing
    Authors:
    Neil Smyth
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    The doctrine of "laches" and lack of authority
    2018-01-08

    Key points

    • Once clear that an action is improperly constituted, it should not be allowed to proceed.

    • Those in control of a company have the duty to manage that company in accordance with its constitution.

    The Facts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    Committal of bankrupt for contempt
    2018-01-08

    Key points

    • Failure to comply with sections 333 and 363 of the Insolvency Act constitutes contempt of court for which a committal order may be obtained.

    • A trustee in bankruptcy should not usually require permission to apply for a committal order.

    • Correct procedure for application confirmed by the court.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Taylor Wessing, Bankruptcy, Insolvency Act 1986 (UK)
    Authors:
    Amy Patterson
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    Court decision on setting aside a statutory demand
    2017-12-05

    The facts

    The Applicant granted two guarantees to a bank in 2006 and 2007 in respect of two facility letters. The bank assigned the Second Facility and the benefit of the First Guarantee to the Respondent. The amounts due under the Second Facility fell due for payment on 31 March 2008 and were only demanded for payment in 2015.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing
    Authors:
    Neil Smyth
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    Use of information obtained by compulsion
    2017-12-05

    Key points

    • Information obtained by compulsion can be shared between officeholders of connected estates (parent/subsidiary)

    • There must, however, be a possibility that there will be a surplus in the subsidiary estate

    • The prospect must be real as opposed to fanciful

    The facts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing, High Court of Justice (England & Wales)
    Authors:
    Amy Patterson
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    The court provides further clarification on the distinction and appropriate use of rescission and annulment of a bankruptcy order
    2017-12-05

    Key points

    • Where the underlying liability on which a bankruptcy order is made is subsequently set aside, the correct remedy is rescission under s.375(1) of the Insolvency Act 1986.

    • Annulment under s.282(1)(a) is the appropriate remedy when, on grounds existing at the time of making the bankruptcy order, the order ought not to have been made.

    The facts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing, Court of Appeal of England & Wales
    Authors:
    Katherine Hudson
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    Payment of interest on proved debts
    2017-12-05

    Key points

    • The Court of Appeal confirmed that there is a complete statutory code for the payment of interest.

    • Statutory interest represents compensation for dividends paid after the administration, and does not depend on any right to interest under the underlying claim.

    • Regard can be had, however, to the rate at which interest would have been paid to the creditor after the administration.

    The facts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    Challenging dividend payments under tax-efficient salary scheme
    2017-11-01

    Key points

    • Payments under a remuneration scheme did not constitute dividends, as the formal decision to categorise them as such was taken by an accountant at the end of the year.

    • Assignments of claims should expressly include all claims which can be made under that assignment in order for title to pass.

    The facts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    Court sanction of settlement agreement
    2017-11-01

    Key points

    • Court reiterated circumstances in which it will sanction a proposed course of action by administrators

    • Requirement that the course of action be “particularly momentous”

    • Court sanctioned proposed settlement in the circumstances

    The Facts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing, High Court of Justice (England & Wales)
    Authors:
    Amy Patterson
    Location:
    United Kingdom
    Firm:
    Taylor Wessing
    An application by the Lehmans administrators on distribution to shareholders
    2017-11-01

    Key point

    • In certain circumstances the court will look to parallel statutory provisions where existing applicable statute does not accommodate the situation, as long as the latter is not offended, expanded or altered by doing so.

    The facts

    This application for directions was brought by the administrators of Lehman Brothers Europe Ltd (the “Company”) on:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Taylor Wessing, Lehman Brothers, High Court of Justice (England & Wales)
    Authors:
    Katherine Hudson
    Location:
    United Kingdom
    Firm:
    Taylor Wessing

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