Where does liability under a Pensions Regulator Contribution Notice rank in an Employer's insolvency?
We have seen an increasing number of pre-packs over recent years, how does a pre-pack work?
We are starting to see signs of movement from the special administrators in relation to clients and creditors who have exposure to MF Global UK Limited ("MF Global UK").
A recent Court of Appeal case confirms that the Foreign Judgments (Reciprocal Enforcement) Act 1933 does apply to judgments in insolvency matters and that the Insolvency Act 1986 can be used to enforce a foreign judgment.
In New Cap Reinsurance Corporation Ltd & Anr v AE Grant & Ors [2011] EWCA Civ 971, the Court of Appeal upheld the first instance decision of the Companies Court that a judgment obtained in Australia could be enforced in England under section 426 of the Insolvency Act (the IA) and at common law.
NEW CAP RE: THE FACTS
Clients active in commodities markets (e.g. large consumers of copper and other metals) may be affected by the collapse of MF Global which was recently placed into Chapter 11 process in the US and into Administration in the UK. MFGlobal was an active clearing agent on numerous metal exchanges including the London Metal Exchange.
MF Global UK Limited In Special Administration
The Financial Services Authority (“FSA”) has confirmed that MF Global UK Limited (“MF Global UK”) has entered the Special Administration Regime created under the Investment Bank Special Administration Regulations 2011 (“Regulations”).1 MF Global UK is the first investment bank to enter the Special Administration Regime. The decision to apply for special administration was initiated by the board of MF Global UK.
When is a company in insolvent? When is a company's assets less than its liabilities (taking account of contingent and prospective liabilities)?
Under English law this is a commercial test and requires that a company has reached a "point of no return" and is not based solely on a review of the company's balance sheet:
If a tenant company fails to pay its rent when due (subject to any grace periods in the lease) the landlord ordinarily has the right to forfeit the lease either by peaceable re-entry of the property or by legal proceedings. However, if the tenant is insolvent (or soon to become insolvent) then this right may be stayed by the moratorium under the Insolvency Act 1986.
FSA announced on 31 October that MF Global UK Limited had entered into special administration. It noted this is the first time the special administration regime has been initiated since it took effect in February 2011, and summarised the benefits of the regime. In particular, it highlighted that the regime should facilitate swift return of client assets and timely engagement with market infrastructure. (Source:FSA Announces MF Global Administration)
The Court of Appeal decision in the Nortel case upheld the High Court ruling that FSD/CN liability is an expense of the administration and therefore ranks ahead of administrators' remuneration, floating charges and unsecured creditors. Much of the press coverage which has followed in the immediate aftermath seems to have assumed that the decision is a victory for "good" pensioners over the "bad" banks.