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How and to what extent can undertakings given on the appointment of a provisional liquidator be enforced by the company in liquidation? Matthew Weaver of St Philips Chambers comments on the first reported decision on these issues.
Abbey Forwarding Ltd (In liquidation) v Revenue and Customs Commissioners  EWHC 225 (Ch),  All ER (D) 91 (Feb)
The applicant company was investigated by the respondent Revenue and Customs Commissioners (HMRC). HMRC gave an undertaking to abide by freezing orders. The applicant brought proceedings, seeking an inquiry as to damages to be carried out on the undertaking. The Companies Court held that, on the evidence, none of the reasons adduced by HMRC would make it inappropriate for the inquiry for damages to occur.
The company in question was wound up by the court on 18 March 2009 pursuant to a petition presented by HMRC on 4 February 2009. The petition was based upon assessments of excise duty raised by HMRC but not, at the date of the petition, served on the company so as to create, by statute, a debt (subject to appeal by the company). On the same day as the petition was presented, HMRC applied, without notice, for the appointment of a provisional liquidator. The application was based principally on the alleged fraudulent behaviour of the company which, it was said, gave rise to the assessments of unpaid excise duty. The court appointed the provisional liquidator on 4 February 2009.
Immediately following the appointment of the provisional liquidator, a worldwide freezing order against three of the company's four directors was sought and obtained in aid of misfeasance proceedings which the provisional liquidator undertook to issue against those directors on the grounds of their part in the company's alleged fraudulent activities.
HMRC gave an undertaking in damages on the appointment of the provisional liquidator and provided the company, under the control of the provisional liquidator, with an indemnity for the undertaking in damages the company was required to give upon the making of the freezing order and for any adverse costs order which might be made against the company within the misfeasance proceedings.
As Blackburne J had anticipated when appointing the provisional liquidator, the company's business was closed down shortly after the appointment. At the return date of the petition, it was unopposed and the provisional liquidator was appointed as liquidator on 18 March 2009.
Misfeasance proceedings were issued and were founded exclusively on the same case as HMRC had advanced for the appointment of a provisional liquidator and, indeed, relied exclusively on evidence from HMRC. These proceedings were dismissed by Lewison J after a 13-day trial in July 2010, principally because the Judge concluded there had been no evasion of excise duty by the company, finding that all 301 of the consignments of alcohol from the company and challenged by HMRC had, in fact, arrived at their destination in France and that there was no evidence that the company was aware of any fraudulent activities of any of its business partners. The liquidator did not seek to appeal this decision.
Despite the judgment of Lewison J, HMRC refused to withdraw the assessments upon which the petition had been based and the liquidator declined to appeal them. The directors of the company obtained permission to bring the appeals against the assessments on behalf of the company and appeals were lodged in January 2011, with the hearings listed for 9 August 2011. HMRC initially opposed the appeals but, on 4 August 2011, withdrew its opposition and consented to the appeals and were ordered to pay £215,000 adverse costs.
In August 2012, after pressure from the company's shareholders, the liquidator agreed to be removed and was replaced. The new liquidator issued an application in November 2013 for an inquiry as to damages on the undertakings given by HMRC on the appointment of the provisional liquidator.
After much discussion between the court and the parties, David Richards J ordered the following issues to be determined on the application:
The company's position was straightforward. It submitted that without the undertaking by HMRC, the provisional liquidator would not have been appointed. It was now clear that the appointment was wrong on the grounds that the assessments raised had been withdrawn and the allegations of fraud advanced had been subsequently dismissed. The court is to use hindsight and consider whether the order was wrongly made, given the subsequent events, and is not limited to considering whether Blackburne J was wrong to make the order on the evidence and submissions available to him at the time. In addition, there was no need to apportion fault on the part of HMRC. The undertaking ought to be enforced in the absence of special circumstances and no such circumstances existed in this case.
HMRC resisted the inquiry on the basis that a winding up order had in fact been made after the appointment of the provisional liquidator, which was not opposed or appealed. The appointment of a provisional liquidator was an interim measure and the undertaking given came to an end when the winding up order was made just as an undertaking in damages on the grant of an interim injunction comes to an end when a final inunction is made at trial.
HMRC also relied on:
In addition, HMRC argued that the current practice of the courts (albeit a practice not in place in 2009) is not to require undertakings in damages from HMRC in such cases and, as such, an inquiry as to damages would be contrary to public interest.
David Richards J ordered an inquiry as to damages and ordered it on the basis that the company would not have been wound up on 18 March 2009. In doing so, he made the following findings:
In addition, one of the directors suffered serious ill-health as a result of the provisional liquidation and freezing order. The judge described the suggestion that the directors ought to have defended the petition as having 'more than an element of unreality'
This is the first reported decision in respect of undertakings given on the appointment of a provisional liquidator and how and to what extent they can be enforced by the company in question.
It helpfully sets out:
The same principles that apply to HMRC will apply to any creditor seeking to appoint a provisional liquidator. An undertaking will be required by the court and is a condition of any appointment of a provisional liquidator. It is intended to provide protection to the company should it later be discovered that the appointment was inappropriate (whether that is because the locus of the creditor is undermined or because the risk to the company or its assets turns out not to be sufficient). As such, the court will treat the undertaking as enforceable unless special circumstances exist.
If the company would have been wound up in any event notwithstanding any problems in the application for the provisional liquidator, the losses claimed under an undertaking may be limited but if the basis for the petition is also undermined, the losses claimed could be significant. Creditors and their advisors must give this serious thought before embarking on such applications.
The Judge dismissed the view that a practice had grown up not requiring HMRC to give undertakings in applications to appoint provisional liquidators. While it was correct to say that the case of Financial Services Authority v Sinaloa Gold plc (Barclays Bank plc intervening)  UKSC 11,  2 All ER 339 involved the Supreme Court confirming the Court of Appeal's view that the Financial Services Authority (now the Financial Conduct Authority and Prudential Regulation Authority), as a public authority fulfilling its public law function and duty, was not required to give an undertaking in damages for the grant of a freezing injunction, it could not be said that this covered the situation of HMRC seeking the appointment of a provisional liquidator.
Sinaloa did not consider such a circumstance and, as far as the Judge was concerned, the position of HMRC as a creditor of a company choosing to present a winding up petition and choosing to seek the appointment of a provisional liquidator was not that of a public authority acting pursuant to its public law function and duty.
HMRC has other options available to enforce payment of a debt owed by a company but chooses to present a petition. The Court of Appeal decision in Revenue and Customs Comrs v Rochdale Drinks Distributors Ltd  EWCA Civ 1116,  STC 186 spelt out clearly that the practice of the courts is to require HMRC to provide an undertaking when seeking the appointment of a provisional liquidator and nothing in the Sinaloa case alters or cast doubt on such a practice.
Interviewed by Nicola Laver.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.
Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.
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