An Antiguan liquidator’s powers could not be indirectly extended by reference to unfair prejudice provisions (Re Stanford International Bank Ltd)

An Antiguan liquidator’s powers could not be indirectly extended by reference to unfair prejudice provisions (Re Stanford International Bank Ltd)

This article considers the Antiguan liquidators’ attempts to extend the reach of their powers and do broader justice between victims of a Ponzi scheme, by reference to section 204 of Antigua’s International Business Corporations Act. The advice of the Board was that this attempt was impermissible. Acceding to the application would have amounted to an unprincipled and uncertain overreach of equity, in excess of the statutory duties and powers of the liquidator. It would also have been contrary to the pari passu principle. Written by Samuel Parsons, barrister at Guildhall Chambers.

In the matter of Stanford International Bank Ltd (In Liquidation) (Acting by and through its Joint Liquidators Mark McDonald and Hugh Dickson) (Antigua and Barbuda) [2019] UKPC 45 

What are the practical implications of this case?

The decision is only of direct relevance to practitioners in Antigua and Barbuda. The decision may also be of interest to Canadian practitioners, given the similarities of the wording of Antigua’s International Business Corporations Act, s 204 and the equivalent Canadian legislation (section 241 of the Canada Business Corporations Act RSC 1985) which includes a similarly broad range of potential ‘complainants’ within its ambit.

Of more interest to practitioners in England and Wales is the wedge that has been driven between (i) the pre-insolvency protections that exist for the benefit of shareholders (see section 994 of the Companies Act 2006 (CA 2006)), and (ii) the protection given to creditors post-insolvency, which is provided for by the pari passu principle (see section 107 of the Insolvency Act 1986) and the statutory tools that liquidators are equipped with for augmenting the estate (such as preference and misfeasance actions).

Stanford illustrates the modern tendency of the courts towards interpretation of the statutory insolvency code as a complete code. Moreover, the judgment of Lord Briggs JSC can be read alongside the repeated judicial limiting of the equitable rule in ex parte James and the Supreme Court’s decision in Re Lehm

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About the author:

Zahra started working as a paralegal at Lexis Nexis in Banking and Insolvency teams in April 2019. Zahra graduated with a 2.1 honours in a BA French and Spanish, completed the GDL at BPP University and is seeking some experience before commencing the LPC. She has undertaken voluntary work for law firms in London, Argentina and Colombia.