Randi News Analysis Highlights â March
Transcription
Randi News Analysis Highlights â March
Lexis PSL Restructuring and Insolvency monthly highlights ® March 2015 highlights March 2015 highlights from the Lexis®PSL R&I team. This month’s highlights include: the latest details on the progress of the recast EC Regulation on Insolvency, the new requirement on IPs to provide up-front fee estimates, the perils of having an inquorate meeting for out-of-court administration appointments (Pui-Kwan v Kam-Ho) and more case updates and key insolvency news for the month. Highlights this month are: European Council announces new insolvency rules The need to be up-front with creditors on fees The importance of doing pre-appointment checks and doing them right (Pui-Kwan v Kam-Ho) Headlines (News updates & analysis) • Chancellor announces case migration from Registrars to the County Court at Central London to reduce court waiting times • Achieving the purpose of an administration (Re BW Estates; Randhawa v Turpin) • Accessibility of English bankruptcy to foreign debtors (JSC Bank of Moscow v Kekhman) • Undertakings given on the appointment of a provisional liquidator (Abbey Forwarding (In liquidation) v Revenue and Customs Commissioners) • Annulling bankruptcy orders-limitation defences (Mowbary v Sanders) Relevant updates from other practice areas • Dispute resolution • Banking & Finance Trackers New and updated on Lexis®PSL R&I • New Practice Notes and checklists Dates for your diary Please click on the link above to read the article Lexis®PSL R&I Highlights March 2015 European Council announces new insolvency rules On 12 March 2015, the European Council approved the draft recast of the EU Insolvency Regulation which amends the EC Regulation on Insolvency proceedings 1346/2000 (see version of approved text here) and adopted its position at first reading. The draft text includes more recitals than the version published in December 2014, with some larger recitals having been divided into two, and a new provision which introduces a committee of representatives of member states to assist the Commission in assessing further amendments. The European Parliament (which agreed a compromise package in relation to the new rules in November 2014) is expected to adopt the text at second reading at its session in May or June 2015. The recast regulation will come into force on the 20th day following its publication in the Official Journal of the European Union. The need to be up-front with creditors on fees Insolvency practitioners will in future be required to provide estimates of fees up-front to creditors under the Insolvency (Amendment) Rules 2015, SI 2015/443, which will come into force on 1 October 2015. For more details, see news analyses: The need to be up-front with creditors on fees and The cost of reforming insolvency practitioners’ fees. The importance of doing pre-appointment checks and doing them right (Pui-Kwan v Kam-Ho) John McDonnell QC at 13 Old Square Chambers discusses the judgment in Pui-Kwan v Kam-Ho [2015] EWHC 621 (Ch), [2015] All ER (D) 133 (Mar) and its implications for insolvency practitioners who agree to be appointed administrators out of court by a company or its directors. The Companies Court held that a company had never been placed in administration where a meeting of its directors, purporting to enter it into administration, pursuant to paragraph 22(2) of Schedule B1 to the Insolvency Act 1986 (IA 1986), had been inquorate and that the purported appointment of the administrator was a nullity which could not be saved under rule 7.55 of the Insolvency Rules 1986. As to the second issue, the court held that an administrator can effectively ‘send’ a conversion notice (converting from administration to liquidation) to the Registrar within the meaning of IA 1986, Sch B1, paras 83(3) or 84(1) even if the notice arrives at the Registry after his appointment has expired. For further details, see news analysis: The importance of doing pre-appointment checks and doing them right. Headlines (News updates & analysis) Chancellor announces case migration from Registrars to the County Court at Central London to reduce court waiting times In an effort to reduce the current long waiting times to appear before a Registrar in the High Court, the Chancellor, in consultation with the court users’ committee, has agreed that certain cases that would usually appear before a Registrar in the High Court may now be transferred to the County Court at Central London and be heard before a District Judge with effect from 6 April 2015 (see LNB News 26/03/2015 160). Achieving the purpose of an administration (Re BW Estates; Randhawa v Turpin) Stefan Ramel of Guildhall Chambers says Re BW Estates; Randhawa v Turpin [2015] EWHC 517 (Ch), [2015] All ER (D) 27 (Mar) will be a comfort to administrators. The sole issue for the judge was whether, at the time that the administrators were required to state their proposals, they could properly have taken the view that one of the purposes of administration could be achieved. He ruled that it was conceivable, in this case, that an administrator could achieve one of the purposes of administration. Even in circumstances where it is unclear exactly what strategy they should follow to • Back to contents page Lexis®PSL R&I Highlights March 2015 achieve one of the purposes of administration, the court is likely to approach their opinion with some deference and is unlikely to hold that they had no basis whatsoever for reaching it. For further details, see news analysis: Achieving the purpose of an administration. Accessibility of English bankruptcy to foreign debtors (JSC Bank of Moscow v Kekhman) Michael Swainston QC at Brick Court Chambers examines the decision in JSC Bank of Moscow v Kekhman [2015] EWHC 396 (Ch), [2015] All ER (D) 288 (Feb), on the accessibility of English bankruptcy to foreign debtors. The Russian debtor sought to invoke English jurisdiction and English bankruptcy law to secure a transparent administration of his international affairs and to assist with his business rehabilitation. The judge held that a connection with the jurisdiction was required, and that it existed in this case because of the debtor’s English law liabilities, which were subject to English jurisdiction, and which would abate as a result of an English bankruptcy. He rejected the argument that an English bankruptcy order would operate unfairly among creditors, essentially because the objections taken were theoretical rather than real on the facts of the case. In particular, the judge did not disturb the Chief Registrar’s assessment that the order would not be recognised in Russia. The real impact of an English order would therefore be outside Russia - in England in relation to English law liabilities subject to English jurisdiction, and in other jurisdictions which may choose to recognise the English order depending on whether they preferred free-for-all or orderly distribution. Accordingly, there was no incursion on comity as against Russia. There was also benefit to an English order because it would discharge the debtor’s English law liabilities, and provide an opportunity for his partial rehabilitation in England and/or in other jurisdictions that recognised the order. For further details, see news analysis: Accessibility of English bankruptcy to foreign debtors. Undertakings given on the appointment of a provisional liquidator (Abbey Forwarding (In liquidation) v Revenue and Customs Commissioners) Matthew Weaver of St Philips Chambers comments on Abbey Forwarding (In liquidation) v Revenue and Customs Commissioners [2015] EWHC 225 (Ch), [2015] All ER (D) 91 (Feb) and whether undertakings given on the appointment of a provisional liquidator can be enforced by the company in liquidation. For more details, see news analysis: Undertakings given on the appointment of a provisional liquidator. Annulling bankruptcy orders-limitation defences (Mowbary v Sanders) Nick Brown, commercial litigation barrister at St Philip’s Chambers , discusses the reasoning behind Re Julie Ann Mowbray (A Bankrupt); Mowbray v Sanders (Trustee in Bankruptcy of the Estate of Julie Ann Mowbray) [2015] EWHC 296 (Ch), [2015] All ER (D) 161 (Feb) and the practical lessons the decision offers for insolvency office-holders on annulments. For further details, see news analysis: Annulling bankruptcy orderslimitation defences. Court ‘Likes’ notification via social media (Re A Debtor (No 0274 of 2010)) Derek Jones, of Harrison Clark Rickerbys, comments on Re A Debtor (No 0274 of 2010) where the county court decided that Facebook could be used to effect notification of bankruptcy proceedings. For further details, see news analysis: Court ‘Likes’ notification via social media. Relevant updates from other practice areas Dispute resolution Banking & Finance Beating the fee hike-by 4pm The Budget 2015 for banking and finance lawyers From Monday 9 March 2015 the court fees that claimants have to pay increased substantially, in some cases by almost 600%, only five days after the House of Lords rubber-stamped the controversial measures. Catherine Baksi speaks to Keith Etherington, civil litigation solicitor at Slater & Gordon and Law Society council member for civil litigation, see news analysis: Beating the fee hike-by 4pm. With the Chancellor’s speech still ringing in our ears, we bring together the most important features of the Budget 2015 for banking and finance lawyers alongside expert analysis and industry comment, see news analysis: The Budget 2015 for banking and finance lawyers. • Back to contents page Lexis®PSL R&I Highlights March 2015 Trackers There has been a development this month on the following case: Names of parties Court and citation Subject Current status Changtel Solutions UK (formerly Enta Technologies) v Revenue and Customs Commissioners Court of Appeal [2015] EWCA Civ 29, [2015] All ER (D) 211 (Jan) Whether the First-Tier Tribunal (Tax Chamber) (the tribunal) or the Companies Court was the appropriate forum to determine whether the petition debt was disputed in good faith on substantial grounds when there was both an appeal against a VAT assessment pending in the tribunal and a winding-up petition pending in the Companies Court. The Court of Appeal previously held that, when the tribunal had reached a conclusion on such an issue, that decision was normally likely to be a compelling factor in the Companies Court’s exercise of discretion. That discretion was not, however, completely abrogated by the jurisdiction of the tribunal. It need not defer to the tribunal in every case, though it might often choose to do so. Applying for permission to appeal to the Supreme Court New and updated on Lexis®PSL R&I New Practice Notes and checklists The following new documents have been added: • P ractice Note: An insolvency lawyer’s guide to the Financial Services Compensation Scheme by Helen Plews and Ashley Smith of CMS Cameron McKenna LLP • Practice Note: The proper law doctrine by Sebastian Way, Skadden Arps Slate Meagher & Flom (UK) LLP • Practice Note: Loan to value covenants by Rosling King LLP • Practice Note: Receivers and VAT by John Baldry of Temple Tax Chambers • Practice Note: Bankruptcy searches by Neeta Chenani of the Lexis®PSL R&I team • C hecklist: A summary checklist and timeline for an application for the suspension of automatic discharge from bankruptcy by Frances Coulson and Sarah May of Moon Beever • C hecklist: A summary checklist and timeline for applications to lift a bankrupt’s suspension from discharge by Frances Coulson and Sarah May of Moon Beever Dates for your diary Date Time Subjects covered 15 April 2015 15:30 LN/R3 Webinar: Privilege and disclosure - the rules and pitfalls featuring Matthew Weaver (St Philips Chambers), Mark Gleeson (Squire Patton Boggs (UK) LLP) and Frances Coulson (Moon Beever) • Back to contents page For more details about Lexis®PSL Restructuring and Insolvency or to have a free trial, please see www.lexisnexis.co.uk/RandIPSLTrial Reed Elsevier (UK) Limited trading as LexisNexis. 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