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    Finance Litigation & Regulatory Update - 26 February 2016
    2016-02-26

    Litigation

    A referral to the financial list!

    In GSO Credit v Barclays Bank plc, the Commercial Court has given guidance on the interpretation of terms in, but not directly defined by, standard Loan Market Association (LMA) documentation which was used in the context of secondary trading of a commitment under a surety bonds facility.

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, Litigation, White Collar Crime, Addleshaw Goddard LLP
    Authors:
    Chris Brennan , Richard Clayton
    Location:
    United Kingdom
    Firm:
    Addleshaw Goddard LLP
    Treatment of senior unsecured debt in European leveraged finance transactions: Court of Appeal confirms no duty to unsecured third party creditors on enforcement
    2016-03-01

    In our recent note “Treatment of senior unsecured debt in European leveraged finance transactions: the need for an intercreditor agreement”, which can be viewed here, we addressed the increase in flexibility in European financings to incur senior unsecured debt and the risk that the lack of any agreed intercreditor arrangement may impair senior secured lenders’ ability to realise recoveries from a European Credit

    Filed under:
    United Kingdom, Aviation, Banking, Insolvency & Restructuring, Litigation, White & Case, Unsecured debt, Court of Appeal of England & Wales
    Authors:
    Rob Bennett , Sally Koo
    Location:
    United Kingdom
    Firm:
    White & Case
    Ralls Builders Limited - clarification on directors' liability for wrongful trading
    2016-03-02

    In February 2016, Mr Justice Snowden handed down his judgment in the High Court proceedings concerning Ralls Builders Limited (in liquidation) [2016] EWHC 243 (Ch). This matter concerned an application by the liquidators of Ralls Builders Limited (in liquidation) (the company) for a declaration regarding the alleged wrongful trading of the company by its directors, under section 214 of the Insolvency Act 1986 (the Act).

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Reed Smith LLP, Insolvency Act 1986 (UK)
    Authors:
    Charlotte Møller , Estelle Victory , Elizabeth A. McGovern , Colin Cochrane
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    Enhanced Rights Against Insurers of 'Insolvent' Entities - One Step Closer
    2016-03-04

    The Third Parties (Rights Against Insurers) Act 2010 is a step closer to coming in to force with the publication of draft Regulations whose aim is to correct omissions in the Act. Once in force the Act will improve the position of claimants who are bringing actions against insolvent defendants and looking to recover from those defendants' insurers.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Herbert Smith Freehills LLP
    Authors:
    David Reston , Anthony Dempster , Sarah Irons
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Is it the end of the road, or can more be done?
    2016-03-04

    Can’t get no satisfaction? Sometimes you can! Would you prefer to have security to cover a debt or the cash in the bank, challenges?

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, DWF LLP, Debt
    Authors:
    Neil Jinks
    Location:
    United Kingdom
    Firm:
    DWF LLP
    Privy Council finds implied jurisdiction agreement sufficient for enforcement of foreign judgment under common law
    2016-02-10

    The Privy Council has held that a foreign default judgment can be enforced under the common law where a jurisdiction agreement in favour of that country can be implied or inferred. It is not necessary for there to be an express jurisdiction agreement: Vizcaya Partners Limited v Picard and another (Gibraltar) [2016] UKPC 5.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Default judgment, Common law
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Scottish Debt Recovery Procedures
    2016-02-11

    Obtaining Decree

    In most circumstances, court proceedings will need to be raised by creditors to recover outstanding sums owed. Depending on the amount due, the action will be a Small Claim (up to and including £3,000) a Summary Cause (over £3,000 and up to and including £5,000) or an Ordinary Action (over £5,000). 

    After obtaining a Decree (or judgement in England) there are a number of steps that can be taken, if the debtor does not make payment, to recover the outstanding debt. In Scotland this process is known as “diligence”. 

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, DWF LLP, Debtor, Debt
    Authors:
    Philip Knight
    Location:
    United Kingdom
    Firm:
    DWF LLP
    Capital received on winding-up a company could be taxed as income from April 2016: should you wind-up your company?
    2016-02-11

    Finance Bill 2016 includes provisions designed to prevent taxpayers converting profits generated in a company into a capital receipt in the hands of the shareholder(s). Taxpayers may want to consider winding-up their companies or making substantial dividend distributions ahead of 6 April 2016 as a result of these measures and the changes to the taxation of dividends.

    Broadly, the intention is that a capital distribution made in the winding-up of a company will be taxed as income if:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Tax, Bryan Cave Leighton Paisner, Shareholder, Dividends, Liquidation
    Authors:
    Alison Cartin , Damian Bloom
    Location:
    United Kingdom
    Firm:
    Bryan Cave Leighton Paisner
    Is a company voluntary arrangement (CVA) a watershed to reduce rent?
    2016-02-15

    Since Retail Acquisitions acquired BHS it has been rationalising its stores as well as other measures in order to turn its fortunes around. However that may not be enough because it believes it is paying considerably more than the market rate on some of its premises.

    In order to implement overhead reductions, it may prepare proposals for a CVA, to reduce its rental liability, and perhaps its overall position with creditors, depending on how the restructure is planned.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Wilder Coe
    Authors:
    Norman Cowan
    Location:
    United Kingdom
    Firm:
    Wilder Coe
    A rock and a hard place…
    2016-02-16

    It is very much the nature of the job that appointed Office Holders are required to make difficult and challenging decisions on each and every case they take. On some occasions those decisions are well received – on others, not so well. Creditors affected by those decisions can take comfort that the Office Holder is experienced in making those difficult decisions, is an Officer of the Court, has their own licence to protect and, fundamentally, has a duty to treat all creditors fairly.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Squire Patton Boggs
    Authors:
    Russell Hill
    Location:
    United Kingdom
    Firm:
    Squire Patton Boggs

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