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    UK Supreme Court finds certain pension liabilities are not entitled to priority treatment, in Nortel and Lehman decisions
    2013-12-11

    CASE SNAPSHOT

    In the matter of the Nortel Companies, the UK Supreme Court found that pension liabilities attributed to a company that arose prior to the occurrence of an insolvency event were not entitled to priority treatment, even if the first demand for payment was only made after the insolvency event occurred.

    FACTUAL BACKGROUND

    The Pension Act

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debt, Liability (financial accounting), Liquidation, The Pensions Regulator (UK), Lehman Brothers, Pension Protection Fund, UK Supreme Court
    Authors:
    Elizabeth A. McGovern
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    UK Supreme Court provides guidance on test of insolvency
    2013-09-27

    BNY Corporate trustee Services Ltd & Ors v Neuberger[2013]UKSC 28

    The UK Supreme Court in BNY Corporate trustee Services Ltd & Ors v Neuberger clarified the ambit of the “cash–flow insolvency” test under section 123 (1)(e) of the English Insolvency Act 1986 ("the "Insolvency Act") and the "balance-sheet insolvency" test under section 123(2) of the Insolvency Act.

     

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Allen & Gledhill LLP, UK Supreme Court
    Location:
    United Kingdom
    Firm:
    Allen & Gledhill LLP
    UK Supreme Court clarifies test for proving balance sheet insolvency
    2013-09-30

    In our December 2010 and April 2011 insolvency updates, we reported on the UK High Court and Court of Appeal decisions in BNY Corporate Trustee Services Limited v Eurosail. The issue before both Courts was whether Eurosail was insolvent by virtue of being unable to pay its debts under the balance sheet limb of the solvency test in section 123 of the UK Insolvency Act 1986. The Court of Appeal upheld the High Court decision that Eurosail was solvent, noting that it had not reached the "point of no return".

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Buddle Findlay, Balance sheet, Insolvency Act 1986 (UK), High Court of Justice (England & Wales), UK Supreme Court
    Authors:
    David Perry , Scott Barker , Willie Palmer
    Location:
    United Kingdom
    Firm:
    Buddle Findlay
    Strict UK litigation privilege test for joint liquidator reports
    2013-08-28

    High Court holds that reports used by the Serious Fraud Office to obtain search and arrest warrants are not subject to litigation privilege in subsequent civil proceedings.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Morgan, Lewis & Bockius LLP, Accounting, Serious Fraud Office (UK), High Court of Justice (England & Wales), UK Supreme Court
    Authors:
    Timothy Wright
    Location:
    United Kingdom
    Firm:
    Morgan, Lewis & Bockius LLP
    Nortel/Lehman: moral hazard powers are a provable debt
    2013-07-26

    Summary

    On 24 July 2013, the Supreme Court handed down its long-awaited judgment in the Nortel/Lehman case: Re Nortel Companies [2013] UKSC 52. The Court looked at the position where a contribution notice (CN) or financial support direction (FSD) was issued by the Pensions Regulator (TPR) on a company that is already in insolvency proceedings in England (eg administration). How does the relevant obligation rank in the order of priority of payment?

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer, Debt, The Pensions Regulator (UK), Lehman Brothers, Pensions Act 2004 (UK), Court of Appeal of England & Wales, UK Supreme Court
    Authors:
    David Pollard , Anne Sharp , Katharina Crinson
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer
    “Super-priority” rejected – practitioners and lenders alike welcome hotly anticipated Supreme Court decision
    2013-07-26

    Relief for lenders and administrators as UK Supreme Court reverses “super-priority” status of pensions liabilities in insolvency ranking.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Unsecured debt, Debt, Liability (financial accounting), The Pensions Regulator (UK), UK Supreme Court
    Authors:
    Catherine Drinnan , Gretchen Lennon
    Location:
    United Kingdom
    Firm:
    Latham & Watkins LLP
    Eurosail Supreme Court judgment: delineating the boundaries of insolvency "to be solvent or not to be solvent, that is the question"
    2013-07-31

    Odd as it may seem, you have to plough through 122 sections of the UK Insolvency Act 1986 (the “Act”) before you finally reach the section that sets out the criteria for establishing insolvency. Section 123 of the Act lists a series of circumstances under which a company may be deemed insolvent. Some of these circumstances are factual—for example, owing a debt of more than £750 for more than 21 days after a demand for payment—but two rely on a legal test of company insolvency.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Jones Day, Debt, Liability (financial accounting), Balance sheet, Lehman Brothers, Insolvency Act 1986 (UK), UK Supreme Court
    Authors:
    Michael Rutstein , Mark G. Douglas
    Location:
    United Kingdom
    Firm:
    Jones Day
    The meaning of the "Balance Sheet Insolvency Test" is finally determined by the UK Supreme Court
    2013-05-09

    Introduction

    The UK Supreme Court judgment in BNY Corporate Trustee Services Limited and others v Eurosail-UK 2007-3BL PLC [2013] UKSC 28 was handed down on 9 May 2013. It considered: (a) the meaning of the balance sheet insolvency test as laid out in section 123(2) of the UK Insolvency Act 1986 (the "Act"); and (b) the legal effect of a post-enforcement call option ("PECO") and, in particular, whether the existence of a PECO is relevant to an assessment of balance sheet insolvency.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Sidley Austin LLP, UK Supreme Court
    Location:
    United Kingdom
    Firm:
    Sidley Austin LLP
    UK Supreme Court clarifies the balance-sheet insolvency test
    2013-05-16

    The Supreme Court has delivered a judgment providing welcome clarification on the construction and effect of section 123(2) of the Insolvency Act 1986 (the "balance-sheet" insolvency test) and its interaction with section 123(1)(e) of the Act (the "cash flow" insolvency test).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Debtor, Liability (financial accounting), Liquidation, Balance sheet, Insolvency Act 1986 (UK), UK Supreme Court
    Authors:
    Damien Byrne Hill , John Whiteoak , Ralph Sellar
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Rubin: enforcement of US judgments in England
    2013-05-08

    UK Supreme Court decision confirms traditional rules on enforcement of all US judgments in England and reverses a significant liberalisation of cross-border bankruptcy law.

    Filed under:
    United Kingdom, USA, Insolvency & Restructuring, Litigation, Morgan, Lewis & Bockius LLP, Bankruptcy, Common law, Enforcement of foreign judgments, UK Supreme Court
    Location:
    United Kingdom, USA
    Firm:
    Morgan, Lewis & Bockius LLP

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