It would appear that the trend we reported in the rising numbers of Scottish corporate insolvencies is showing no let up.

This question had until recent times been a conundrum of modern fixed charge receiverships (as well as receivers appointed under the Law of Property Act 1925), because in the scenario of the receiver seeking to step in and deal with property, the receiver is also said to be the borrower's deemed agent. It therefore begged a thorny question of the receiver, about how to reconcile being on both sides of the possession action.

Insolvency officeholders seeking to realise claims or other rights of action will take comfort from the Court of Appeal’s decision in Re Edengate [2022] EWCA Civ 626.

The Court held that failure by a liquidator to give a defendant the opportunity to buy or settle a claim against it before selling the claim to a third party is not necessarily perverse. However, it may often be sensible or good practice to do so.

There are significant differences in the procedures available to lenders north and south of the border when it comes to enforcing fixed charges or standard securities over real/heritable property. In this blog, we will compare the process in England & Wales ("E&W") of appointing a fixed charge or "LPA" receiver with the Scottish calling-up procedure

England & Wales: LPA receivers

In Re Edengate Homes (Butley Hall) Limited (in liquidation) [2022] EWCACiv 626, the Court of Appeal considered a challenge to an assignment of claims by a liquidator.

The Commercial Court (Andrew Baker J) has handed down judgment on a jurisdiction challenge inInvest Bank v El-Husseini[2022] EWHC 894 (Comm). Daniel Warents (whose oral submission to the Court were said to have been “very well presented”) and Emma Hughes acted for the first, third, and fourth defendants (instructed by Streathers Solicitors LLP).

The recent company insolvency statistics for Q1 2022 show the number of company insolvencies is continuing to increase. The figures show creditors’ voluntary liquidations as being the most common procedure followed by compulsory liquidations – the number of which is more than twice as high as in the previous quarter, although still below pre-pandemic levels.

It is often the case, that insolvency claims are pursued against former directors of the insolvent company or persons connected to them. It is also often the case, that such claims are assigned to a litigation funding company given lack of funds in the insolvent estate to pursue them. This is what happened in Lock v Stanley where various claims against the former directors, their parents and connected company were assigned to Manolete.

Tennis star Boris Becker has recently been found guilty of four charges under the Insolvency Act 1986 (the Act). This case shows that the Insolvency Service will take similar cases seriously and shows that there are clear consequences for individuals who try to conceal assets in bankruptcy.

Government-backed loan schemes implemented to assist ailing businesses during the pandemic have been subject to widespread abuse. An estimated £4.9bn of the £47bn invested in business support loans during the life of the pandemic is thought have been lost to fraud and up to £17bn may never be repaid. In response to concerns about potential abuse of limited company liability, new legislation received Royal Assent on 15 December 2021 - The Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Act 2021 (the Act).