Summary: Robin Ganguly explains predictive coding and technology assisted review for trial use, and how the technology might be used for insolvency investigations.
The High Court has given judgment in a case (G4S plc v G4S Trustees Ltd) about whether a defined benefit (DB) scheme which was closed to future accrual, but whose members' benefits continued to be linked to final salary, was a "frozen" scheme for the purposes of the employer debt legislation. The Court has decided that the final salary link did not mean that the members were in pensionable service and, as a result, the scheme was frozen. This is important for employers (and trustees) of closed schemes where the members retain a final salary link.
The Court of Appeal has today handed down judgment in the case of Orexim Trading Limited v Mahavir Port and Terminal Private Limited [2018] EWCA Civ 1660, raising important issues as to the service of claims under s.423 of the Insolvency Act 1986 out of the jurisdiction.
In the recent decision in Carlos Sevilleja Garcia v Marex Financial Limited,1 the Court of Appeal helpfully summarised the justifications for the English law rule against claims for reflective loss and confirmed that the rule applies equally to unsecured creditors of a company as it does to shareholders.
Highlights
Dubbed "the year of the CVA", 2018 has so far seen a spate of high profile retail insolvencies. Landlords are seeking to protect their position in this volatile climate.
The rules governing the actions landlords can take in insolvency situations are complex. They depend on whether the tenant is a company or individual, the specific insolvency process involved and whether the Financial Collateral Arrangements (No. 2) Regulations 2003 (FCAR) apply.
In the recent decision of Orexim Trading Limited v Mahavir Port and Terminal Private Limited, the Court of Appeal has ruled that the Court does have power to permit service of a claim under section 423 of the Insolvency Act 1986 outside England and Wales. However, in the circumstances of this case, the Court of Appeal declined to exercise its discretion to grant permission to serve the claim form outside the jurisdiction. HFW acted for the successful First Respondent, Mahavir Port and Terminal Private Limited (MPT).
Background
July 2018
2018 Summer review M&A legal and market developments
In this issue...
Contractual provisions.............................................................1 Company law...........................................................................4
Listed companies....................................................................7 Good faith................................................................................9
Authors: Philip Broke, Veronica Carson
The decision in Davey v Money & Anor [2018] EWHC 766 (Ch) serves as a useful reminder for secured creditors (such as banks) of the potentially broad-ranging scope of liabilities that they may be exposed to in the course of dealings with administrators.
On 6 June 2018, the Commercial Court handed down its judgment in Nori Holdings Ltd v Bank Otkritie Financial Corp [2018] EWHC 1343 (Comm), and provided helpful guidance on three important issues:
1. The Court clarified that West Tankers1 remains good law in that parties will not be granted anti-suit injunctions by the English Court to restrain proceedings commenced in other Member States in breach of an agreement to arbitrate, notwithstanding the contrary opinion expressed by Attorney General Wathelet in Gazprom (C-536/13).
On 19 June 2018, the Treasury published its call for evidence response (Response) in respect of the government’s proposed 2017 manifesto pledge to introduce a ‘breathing space scheme’ for serious problem debt (Scheme).