The Court of Appeal raises the bar for insolvent claimants on security for costs

A recent Judgment by Sheriff Jamieson at Dumfries Sheriff Court has provided some guidance on the scope of the role of a Court Appointed Reporter in assessing the remuneration of liquidators.

The facts

The Applicant granted two guarantees to a bank in 2006 and 2007 in respect of two facility letters. The bank assigned the Second Facility and the benefit of the First Guarantee to the Respondent. The amounts due under the Second Facility fell due for payment on 31 March 2008 and were only demanded for payment in 2015.

Key points

• Information obtained by compulsion can be shared between officeholders of connected estates (parent/subsidiary)

• There must, however, be a possibility that there will be a surplus in the subsidiary estate

• The prospect must be real as opposed to fanciful

The facts

Key points

• Where the underlying liability on which a bankruptcy order is made is subsequently set aside, the correct remedy is rescission under s.375(1) of the Insolvency Act 1986.

• Annulment under s.282(1)(a) is the appropriate remedy when, on grounds existing at the time of making the bankruptcy order, the order ought not to have been made.

The facts

To a layperson this may came as a surprise. But, to those familiar with the secondary loan market, it is confirmation of existing law.

A “vulture fund”– including a newly incorporated company with a share capital of only £1 that has not traded and has been established for the purpose of acquiring a defaulted loan with a view to realising more by enforcing than had been expended on acquiring the debt can be a “financial institution” for the purposes of the transfer provisions of a loan agreement.

Key points

• The Court of Appeal confirmed that there is a complete statutory code for the payment of interest.

• Statutory interest represents compensation for dividends paid after the administration, and does not depend on any right to interest under the underlying claim.

• Regard can be had, however, to the rate at which interest would have been paid to the creditor after the administration.

The facts

UK insolvency law has seen a number of significant changes over recent years, including the introduction of the Insolvency Rules 2016 (“IR 2016”) in April 2017. Further legislation has been expected in order to ensure that all of these changes apply consistently throughout the whole insolvency regime, after it became clear that IR 2016 did not apply to insolvent LLPs.

Earlier today, the Court of Appeal handed down a significant judgment dealing with the adequacy of standard form after-the-event (“ATE”) insurance to defeat an application for security for costs.

In an unanimous ruling, the Court of Appeal overturned the High Court’s judgment on the defendants’ security for costs applications in Premier Motorauctions Limited (in liquidation), Premier Motorauctions Leeds Limited (in liquidation) v PricewaterhouseCoopers LLP and Lloyds Bank plc [2016] EWHC 2610 (Ch).

In Crowden and Crowden v QBE Insurance (Europe) Ltd[2017] EWHC 2597 (Comm) the Commercial Court found in favour of the Defendant insurer on the disputed construction of an "insolvency" exclusion in a professional indemnity insurance policy.  The case is a useful reminder of the approach which the English Courts take to the construction of exclusions in insurance contracts.  

1. Background