A recent decision of the German Federal Court of Justice (Bundesgerichtshof) has extended the liability of legal advisors in crisis situations.

Background

Under German law, a lawyer may be liable not only to his client, but also to a third party, if the third party has a special interest in the lawyer's performance. The Bundesgerichtshof has clarified that managing directors and even shadow directors may have such a special interest and may claim damages from their company’s legal advisor for breach of duty (Pflichtverletzung).

Where a creditor believes that a debtor is insolvent, any “third-party application” that it makes for the insolvency of the debtor must be well substantiated.

Decision

The District Court of Hamburg recently considered an application for insolvency on grounds of illiquidity due to default in social security contributions.

A landmark decision of the German Federal Court (13 June 2006 – IX ZB 238/05) held that the illiquidity of a company could be assumed where it was in default for more than six months of social security contributions.

A proposed amendment to the Insolvency Act, has been approved by the government and is currently under discussion in the Czech Parliament. It is expected to significantly alleviate the situation for debtors seeking debt relief. The previous government had intended to introduce similar changes; however, the legislative process was halted by the end of its term.

Current position

Currently, debtors can achieve debt relief only after 5 years of "good conduct", unless they:

In Hunt v Singh, the Court referred to the Supreme Court's landmark decision in BTI v Sequana (see our alert) in deciding when the directors' duty to creditors arose.

Background

Marylebone Warwick Balfour Management Limited (the Company), entered a tax avoidance scheme between 2002 and 2010 which the directors, on professional advice, believed to be valid.

The Court of Appeal has recently referred to established case law that the court will only interfere with the act of an officeholder “if he has done something so utterly unreasonable and absurd that no reasonable man would have done it”.

While the judge in the lower court had not made any error of law, on the facts there were identifiable flaws in the judge's reasoning that the trustees' decision not to join in the proceedings was perverse.

The judge had failed to recognise that:

Der Bundesgerichtshof (BGH) hat am 29. Juni 2023 entschieden, dass ein Rechtsanwalt wegen Beratungsfehlern zu Zahlungen nach Insolvenzreife gegenüber dem Geschäftsführer haften kann, auch wenn er das Unternehmen und nicht die/den Geschäftsführer persönlich berät (IX ZR 56/22, ZInsO 2023, 1642).

The UK Corporate Insolvency and Governance Act 2020 (CIGA) introduced temporary measures to provide companies with the flexibility to continue trading during COVID-19. CIGA also enacted a package of permanent measures to maximise the survival prospects of viable companies.

The reforms implemented through CIGA are the most significant change to the UK’s corporate insolvency regime in 20 years. This article looks at how those reforms have taken shape over the last three years, with reference to the Insolvency Service's Post-Implementation Review of CIGA.

The Insolvency Service has published its official three-year Post Implementation Review of the Corporate Insolvency and Governance Act 2020 (CIGA). The Review focused on the three permanent measures:

Re Gatecoin Limited (Gatecoin) is a landmark decision concerning the winding-up of a cryptocurrency exchange.

Background

Liquidators secured over 50 types of cryptocurrencies with an aggregate value of over HK$140m. To aid the liquidator’s allocation of the seized cryptocurrencies, the Court of First Instance decided two key issues.

Decision

The court held that:

This case concerned the immunity of receivers from claims, where the Court had approved the sale of assets over which they were appointed.

Background

Following a dispute between two shareholders of Blackpool Football Club Limited (BFCL), receivers were appointed by the court over certain assets related to Blackpool Football Club, including the shares held by the majority shareholder in BCFL, Denaxe Limited (Denaxe).

During the marketing process, the receivers concluded the best way forward was to sell the assets as one complete package.