An estate is deemed to be bankrupt when the total value of its debts and liabilities (including conditional and future liabilities) is greater than the total value of its assets. A bankrupt estate is often a very daunting prospect for the executors or administrators (the PRs). The task of administering such an estate is challenging and often fraught with pitfalls. What should the PRs look out for?

If I was to provide some top tips for those potentially faced with insolvent estates, I would say the following are my top 3:

Unlike in personal insolvency, the estate is bankrupt when its liabilities are greater than assets. There is no need for an order declaring an estate bankrupt. Equally, there is, therefore, no specific, different Grant appointing those responsible for administering an insolvent estate. A bankrupt estate may be administered by its appointed executor or administrator (PR), applying insolvency rules in the administration process.

Re Diffraction Diamonds DMCC [2017] EWHC 1368 (Ch)

This case deals with the English Court’s jurisdiction to wind up foreign companies, on the grounds of public interest. While it does not create new law, it is a helpful review of the authorities, particularly Re Titan International Inc [1998] 1 BVLC 102 (“Titan”).

Case Facts

The High Court confirmed that it is generally not appropriate to present a winding up petition to recover sums due under a construction contract, particularly where those sums are disputed or there is a legitimate cross claim.

A professional negligence claim against trustees in bankruptcy alleging that they had unnecessarily prolonged the bankruptcies and caused the bankrupts’ loss failed. The Trustees had agreed not to take steps in the bankruptcies while Dr Oraki and her husband made repeated applications to set aside the judgment upon which their bankruptcy orders were made and annul their bankruptcies under s 282(1)(a) of the Insolvency Act 1986, which they eventually succeeded in doing.

If an employer is affected by an insolvency event the insolvency practitioner or official receiver is obliged to notify the trustees of the employer’s pension scheme, the Pensions Regulator, and the Pension Protection Fund of the fact of the insolvency event. Here, we provide an overview of the pensions issues arising from employer insolvency.

In the recent case of Cherkasov & others v Olegovich [2017] EWHC 756 (Ch) the English courts considered the public policy exception set out in Article 6 Cross Border Insolvency Regulations 2006 (CBIR) and whether security for costs could be ordered against the official receiver of a Russian company (who had obtained recognition in England under CIBR) when he applied for an order for the production of evidence by some of the former managers of a Russian company under section 236 of the Insolvency Act 1986 (IA).

Pursuant to the Insolvency Act 1986 a company's liquidator can recover any of the company's property that is transferred after the date on which a winding up petition is issued. This is because s.127 makes any disposition of property (such as land, money and goods) in the period after issue of a winding up petition void.

Key points

• A practical approach was adopted by the court in respect of deadlines for submitting administration expense claims that were otherwise holding up the making of distributions to unsecured creditors.
• In the absence of a suitable statutory mechanism, the court allowed for a cut-off date by which expense claims must be submitted.

The administrators of 18 of the Nortel companies applied to court for directions on how to deal with potential claims for administration expenses.

We're now at the halfway mark of Pensions in 30 Podcasts and episode 15 provides an overview of the Pensions Protection Fund (PPF). We look at how a scheme qualifies for entry into the PPF, funding and compensation.

Click here to listen to the podcast. 

Key Points