On 24th August 2016 the claimant issued protective proceedings against four defendants for damages in excess of £10 million in relation to alleged defects in the design and construction of a high bay warehouse and associated infrastructure ("the Works"). The third defendant ("Twintec") was responsible for the design and construction of a steel fibre reinforced concrete slab, which formed part of the Works, and was insured by Royal and Sun Alliance Insurance PLC ("RSA").
The Court of Appeal has confirmed that a company must have a settled intention to appoint an administrator before it can file a notice of intention to appoint and benefit from the interim moratorium that applies as a result. We cover this, and other issues affecting the insolvency and fraud industry, in this month's update:
The court has stressed the importance of validly serving a Statutory Demand before presenting a Bankruptcy Petition. The creditor must do all that is reasonably required to bring the service of the Statutory Demand to the attention of the debtor. Without effectively serving a Statutory Demand on the debtor, presenting a valid Bankruptcy Petition is impossible.
Background
After a lengthy consultation period, the Pre-Action Protocol for Debt Claims (PAPDC) has now been finalised and will come into force on 1 October 2017. This protocol will apply to lenders who are seeking payment of a debt from an individual/ sole trader, as a debtor or guarantor. Now is the time to update your systems and procedures to accommodate the new protocol requirements.
What is required?
This article was first published in Insolvency Intelligence 2017, 30(5), 85-87.
In an earlier edition of this publication I identified what appeared to be a growing trend for the making of a draconian form of order suspending the discharge of bankruptcies. This form of order is typically associated with the case of Mawer v Bland where Mrs Justice Rose upheld on appeal the following order made by Chief Registrar Baister:
The 2008 collapse of the Lehman Brothers group (“the Group”) continues to generate questions of English insolvency law of interest to the international business community. A recent judgment of the UK Supreme Court considered, amongst other issues, the rights of foreign (non-sterling) currency creditors in English insolvency proceedings. This Alert considers that issue and provides some takeaway points for you to consider in your dealings with English counterparties.
Key Point
In certain circumstances, a purchaser’s deposit may constitute an equitable lien upon the liquidation of the seller.
The Facts
An application under s112 IA 1986 was made by the joint liquidators of Alpha (Student) Nottingham Ltd to determine whether the purchasers of unbuilt flats had the benefit of equitable liens, and therefore ranked as secured creditors in the liquidation.
The Facts
Three former managers of a Russian company sought security for costs from its liquidator in respect of hearings to set aside a recognition order obtained by the liquidator pursuant to the Cross-Border Insolvency Regulations 2006 (the CBIR) and for documents pursuant to Section 236 of the Insolvency Act 1986.
The Decision
What is a freezing order?
The purpose of a freezing order is to preserve the defendant's assets until judgment can be enforced. It operates by granting an injunction prohibiting the defendant (or anyone on his behalf) from disposing of identified assets. Legally, it does not operate as security over the assets.
Taylor v Van Dutch Marine Holding Ltd
Claimant Litigant in Person recovers 150 per hour for his time
Spencer and another v Paul Jones Financial Services Ltd (unreported), 6 January 2017 (Senior Courts Costs Office)
Summary
A claimant litigant in person can recover costs at his typical hourly rate (150). Whilst the burden of proving such financial loss lies on the claimant, the burden is not impossibly high.
Facts