The recently reported decision of ICC Judge Greenwood in Grove Independent School Ltd, Re [2023] EWHC 2546 (Ch) (Grove) provides some clarity on the test to be applied by the court in deciding whether to exercise discretion to grant an order for a Part A1 moratorium. In this case, the company in question was also faced with a winding-up petition, presented by His Majesty's Revenue & Customs (HMRC).

Between 1 April and 30 June 2023, there were 6,342 registered company insolvencies, which is the highest number of insolvencies since the second quarter of 2009, and a 9% increase on the previous quarter of 2023.

Background

In R (on the application of Palmer) (Appellant) v. Northern Derbyshire Magistrates Court and another (Respondents), the Supreme Court held that an administrator appointed under the Insolvency Act 1986 (IA 1986) is not an "officer" of the insolvent company under section 194(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

On 23 January 2024, the English Court of Appeal set aside the April 2023 order of the High Court sanctioning the English Part 26A restructuring plan (the “Plan”) proposed by AGPS BondCo plc (the “Plan Company”), a subsidiary of Adler Group SA (Adler Group SA and its subsidiaries being the "Adler Group"). The successful appeal was brought by an ad hoc group of holders of the Adler Group's 2029 notes (the "AHG"). The practical consequences of this decision for the Adler Group's restructuring remain to be seen.

Key developments of interest over the last month include: IOSCO publishing its final Policy Recommendations for Crypto and Digital Asset (CDA) Markets; the UK government publishing a response to its previous consultation and call for evidence on proposals for the future financial services regulatory regime for digital assets as well as the FCA and Bank of England publishing proposals on the UK stablecoins regulatory regime; the European Parliament's ECON Committee publishing draft reports on the proposed PSD3 and Payment Services Regulation; and the UK government publishing a Future of Paym

UK Restructuring A YEAR IN RETROSPECT 2 Contents Introduction Our people UK team Matter Highlights UK Restructuring Employment UK Restructuring Section Header Section Header Contents 3 Robert Russell UK Head of Restructuring +44 (0)161 235 4147 [email protected] 2023 – Continued instability Casting our minds back to January last year, the economic outlook was fraught with uncertainty.

A free-standing moratorium for financially distressed but ultimately viable companies was introduced in 2020. It is sometimes called a Part A1 moratorium, after the part of the Insolvency Act 1986 which provides for it.

Overview

• The UK Supreme Court issued a recent decision in R (on the application of Palmer) v Northern Derbyshire Magistrates Court and Another [2023] UKSC 38.
• Crucially, the Court determined that an administrator is not an officer of the company within the meaning of the phrase 'any director, manager, secretary or similar officer of the body corporate', for the purpose of section 194(3).

Contents

R (on the application of Palmer) v Northern Derbyshire Magistrates Court and Another [2023] UKSC 38

R (ON THE APPLICATION OF PALMER) V NORTHERN DERBYSHIRE MAGISTRATES COURT AND ANOTHER [2023] UKSC 38

Insolvency practitioners will welcome the Supreme Court’s recent decision that an administrator of a company appointed under the Insolvency Act 1986 (IA) does not fall within the ambit of section 194(3) of the Trade Union and Labour Relations (Consolidation) Act 1992) (TULRCA) and therefore cannot be held personally liable under criminal law for the company’s failure to give notice to the Secretary of State in accordance with section 193 of TULRCA.

On 23 January 2024, the Court of Appeal handed down its much anticipated judgment[1] on the appeal of the Adler restructuring plan pursuant to Part 26A of the Companies Act 2006 (“RP”), which was sanctioned by the High Court on 12 April 2023