Lexis®PSL Restructuring and Insolvency monthly highlights—August 2016

This month's highlights include analysis on the first reported case to consider who bears the costs of an unsuccessful appeal of a bankruptcy order, and an article looking at litigation funding from an insolvency practitioner's perspective. Plus various other reported case decisions and analyses, and other news affecting the day-to-day work of restructuring and insolvency professionals.

Headlines (News updates & analysis)

Who bears the costs of an unsuccessful appeal of a bankruptcy order?

How will the costs judgment in Cooke v Dunbar Assets Plc shape the laws around bankruptcy orders? Faith Julian of 9 Stone Buildings explores the judgment, which is the first case to consider the issue of costs on an appeal against a bankruptcy order, and looks at the impact it may have on future disputes.

For further reading, see blog post: Who bears the cost of an unsuccessful appeal of a bankruptcy order? (Cooke v Dunbar Assets plc).

Learning from the collapse of BHS

Following publication of the Work and Pensions and Business, Innovation and Skills Committees’ report on the collapse of British Home Stores, Ian Defty, insolvency practitioner at DDJ Insolvency Limited, considers what lessons can be learnt.

For further reading, see blog post: Learning from the collapse of BHS.

Litigation Funding—an Insolvency Practitioner's perspective

Michael Leeds, director, and Nick Wood, partner, of the Fraud Insolvency Division (FInD) of Grant Thornton UK LLP discuss some of the issues insolvency practitioners consider when contemplating the use of funding.

For further reading, see blog post: Litigation Funding—an Insolvency Practitioner’s perspective.

Role of the Parliamentary Select Committees and BHS

The collapse of nationwide clothing retailer BHS has prompted much concern about many issues ranging from pension fund deficits to abuse of limited liability laws. Owing to the complexity and scale of the problem, the Parliamentary Select Committee called on expert advice from barristers at South Square. Hannah Thornley explains the role of the South Square team, giving insight as to why their input was called on, and whether or not we might see more of such arrangements in future.

For further reading, see blog post: Role of the Parliamentary Select Committees and BHS.

How to run a wrongful trading case

Discussing the judgment in Re Ralls Builders Ltd (No 2), Christopher Boardman, a barrister at Radcliffe Chambers, says the case is an illuminating example of the problems and difficult decisions directors of insolvent companies face when considering how to properly conduct themselves and avoid potential liabilities.

For further reading, see blog post: How to run a wrongful trading case—Re Ralls Builders Ltd (No 2).

Chairman incorrectly deals with creditor's claim in IVA vote

Reuben Comiskey, barrister at Radcliffe Chambers, discusses AB Agri Ltd v Curtis in relation to challenging an individual voluntary arrangement (IVA) on the ground of material irregularity and examines how the decision may affect creditors and debtors.

For further reading, see blog post: Chairman incorrectly deals with creditor’s claim in IVA vote—AB Agri Ltd v Curtis and others.

Parliament to consider preferential creditor status for consumers in insolvency

A recent report by the Law Commission recommended that consumers jump up the insolvency hierarchy. Russell Hill, partner, and Matt Ford, trainee, in the restructuring and insolvency group of Squire Patton Boggs, consider the potential impact of the report.

For further reading, see blog post: Parliament to consider preferential creditor status for consumers in insolvency.

PPF publishes refreshed guidance for restructuring & insolvency professionals

The Pension Protection Fund (PPF) has updated its restructuring principles guidance and its general guidance for restructuring & insolvency professionals. The guidance documents set out the criteria that should be incorporated in any proposals made in respect of a sponsoring employer suffering an insolvency event and provide information on the roles and responsibilities of insolvency practitioners throughout the PPF assessment process.

For further reading, see blog post: PPF publishes refreshed guidance for restructuring & insolvency professionals.

Relevant updates from other practice areas

Banking and Finance

Brexit—examining the implications for leveraged finance

Matthew Dunn, partner at Clifford Chance, discusses the potential implications for leveraged finance following the UK’s decision to leave the EU.

For further reading, see blog post: Brexit—examining the implications for leveraged finance.

Brexit and the future of the Capital Markets Union

Peter Workman, partner at PwC, discusses the impact of Brexit on the UK’s participation in the Capital Markets Union (CMU) project.

For further reading, see blog post: Brexit and the future of the Capital Markets Union.

The impact of Brexit on derivatives

Nigel Dickinson, partner, and Victoria Nevins, associate, at Norton Rose Fulbright LLP discuss the potential implications of Brexit on the derivatives market.

For further reading, see blog post: The impact of Brexit on derivatives.

Cases

Libyan Investment Authority v Maud [2016] EWCA Civ 788, [2016] All ER (D) 15 (Aug)

The Court of Appeal, Civil Division, allowed an appeal against the setting aside of a statutory demand. The payment of a guarantee, sought by the demand, would not have been in breach of freezing orders imposed by way of sanctions against Libya under United Nations Security Council Resolutions or the European Regulations adopted to give those Resolutions effect in Europe.

Re BHS Ltd (in administration) [2016] EWHC 1965 (Ch), [2016] All ER (D) 20 (Aug)

The Companies Court held that the appointment of additional administrators, appointed concurrently with existing administrators of BHS Ltd, was in the best interests of creditors, as it would enable an investigation into possible claims the company might be entitled to bring against former and current directors of the company in the most timely and efficient manner.

Re Lehman Brothers International (Europe) (In Administration); Lomas and others v Burlington Loan Management Ltd and others [2016] EWHC 2131 (Ch), [2016] All ER (D) 81 (Aug)

The Companies Court determined six supplemental issues concerning creditors' claims arising out of two previous judgments raised by the administrators of Lehman Brothers International (Europe) on an application for directions.

Dates for your diary

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About this blog post

This is a shortened version of the Lexis®PSL Restructuring and Insolvency monthly highlights which was first published on Lexis®PSL Restructuring and Insolvency.

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