Peter Ferrer, Harneys

This is an extract from the 2022 edition of GRR's the Americas Restructuring Review. The whole publication is available here.

In summary

In the October 2021 edition of IBA Insolvency and Restructuring International, Peter Hayden and Jonathan Moffatt explain recent decisions in the UK and the Cayman Islands on the narrowing of the rule in Prudential and its implications for shareholders and creditors considering litigation.

Introduction

This year’s 1 Chancery Lane Autumn Bumper Briefing takes as its theme – what else? – Covid-19 and its consequences. Some two years after the virus was first identified, and just over eighteen months since the first lockdown began, the courts are starting to deal with cases arising out of the pandemic and the measures taken to contain it.

In CPS v Aquila Advisory Ltd [2021] UKSC 49, the Supreme Court has re-affirmed the existing law on illegality and attribution of directors’ wrongdoing to their companies, while providing helpful guidance and clarification on aspects of the law relating to fiduciary duty, constructive trusts, attribution, and illegality.

The case of John Doyle Construction Ltd v Erith Contractors Ltd [2021] EWCA Civ 1452 (07 October 2021) saw the Court of Appeal re-explore the conflict between the adjudication process and insolvency following the Supreme Court decision ofBresco Electrical Services Ltd v Michael J Lonsdale Ltd.

Judgment was given by the Court of Appeal yesterday (7th October) in John Doyle Construction Limited (In Liquidation) v Erith Contractors Limited. This important case considered the relationship between adjudication and insolvency proceedings in the context of applications to enforce an adjudicator's decision. The underlying contract between JDC and Erith had related to hard landscaping works at the London Olympic park in Stratford.

The High Court has set out the principles that apply to the construction of questions in an insurer’s automated online underwriting system and the circumstances in which an insurer’s questions may lead to waiver of the right to be told about certain information. In this case, the Court considered the construction and scope of the insurer’s standard question concerning previous insolvencies, and held that the wording used waived the insurer’s right to be told about other insolvency events not caught by the question.

Background

PH Insight for News and Analysis of the Latest Developments from the Courts of England and Wales for August 2021

In this edition. . .

The Board of the Privy Council has allowed an appeal in relation to the application of the so-called “reflective loss” principle, confirming that the rule falls to be assessed as at the point in time when a claimant suffers loss and not at the time proceedings are brought Primeo Fund v Bank of Bermuda (Cayman) Ltd & Anor (Cayman Islands) [2021] UKPC 22.

At A Glance

This past month, the Supreme Court overturned the Court of Appeal’s decision in Triple Point Technology Inc v PTT Public Company Ltd[2021] UKSC 29, and most notably, found that liability for liquidated damages survives termination of the contract and extends to work that was not completed as at the date of termination.

Background