In a recent interesting Scottish case, HSBC Bank plc, Re an Order to wind up Kirkbride Investment Limited [2009 Scot CS CSOH 147], the Court of Session granted an application to wind up an overseas company and appoint Joint Provisional Liquidators. The company, registered in Gibraltar, was involved in property development in Scotland with the secured lending provided by the Bank.

The Facts

The FSA has released a further update on Keydata Investment Services Limited. The update reads as follows:

"On 18 November 2009 the Luxembourg financial services regulator, the Commission de Surveillance du Secteur Financier (the CSSF) applied to the Luxembourg court for Eric Collard of KPMG ADVISORY s.a.r.l to be appointed as administrateur provisoire (provisional administrator) of Lifemark S.A. (Lifemark).

Independent Trustee Services Ltd (the trustee) was the sole trustee of the Ilford Pension Scheme (the Scheme), which was underfunded when the sponsoring employer went into administration in 2004. There was a proposal that the trustee should buy out certain benefits for members of the Scheme, for whom no Pension Protection Fund (PPF) compensation would be available, before the Scheme entered an assessment period.

The Court of Appeal handed down its decision on 6 November 2009 upholding the High Court decision that a scheme of arrangement is not an appropriate mechanism by which the administrators of Lehman Brothers International (Europe) (LBIE) can return assets to LBIE’s clients.

The Office of Fair Trading ("OFT") has announced that it will conduct a review of the corporate insolvency market in the UK. Its aim is to assess the level of competition in the UK market and ensure that the market itself is working well for consumers.

Following an informal consultation in late 2008, the DWP is now consulting formally about changes to the Employer Debt Regulations made under s75 Pensions Act 1995. The consultation document can be found at www.dwp.gov.uk/consultations/2009.

The main proposed changes are intended to facilitate corporate restructurings, but other changes are designed to address some technical problems with the Regulations.

Corporate restructurings

In a much anticipated judgment the Court of Appeal has clarified the position regarding the anti-deprivation rule.

In August we reported that the Court of Appeal had expressed doubts as to whether the EAT in Oakland v Wellswood was right to suggest that pre-pack administrations could be insolvencies "begun with a view to liquidation" (so that TUPE does not apply to transfer employees).

Last year, in the case of Oakland v Wellswood (Yorkshire) Ltd, the EAT suggested that, if an administrator has been appointed with a view to liquidating a transferor company, this fell within the exception provided by TUPE Regulation 8(7) (which provides that where there are insolvency proceedings instituted with a view to liquidation, the key employee protections afforded under TUPE do not apply). This ran contrary to government guidance.

We have spent a lot of time thinking about landlords being affected by tenants going into administration over the last year. This posting is about a court case where the landlord’s administrators were trying to postpone the tenant’s application to Court for the grant of a new tenancy under the 1954 Act.

The administrators failed in their attempts to defer the 1954 Act proceedings even though it severely affected the value of the property in question and the amount that was going to be paid out to the secured creditor.