Funding of insolvency litigation and investigations

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When an insolvency office-holder is appointed over an insolvent estate, there is a need to commence litigation and there are no or limited assets in the estate the following matters will need to be carefully considered:

  1. •

    how the costs of their lawyers (both solicitors and counsel) and any disbursements (such as court fees and expert reports) are going to be funded

  2. •

    the likely requirement for security for costs to protect a defendant against the risk of successfully defending the litigation and being unable to recover their fees from the insolvent estate

  3. •

    the payment of any adverse costs orders made against them and/or the insolvent estate if the litigation is unsuccessful

The above risks can be dealt with by a variety of litigation funding tools, including:

  1. •

    conditional fee agreements

  2. •

    damages based agreements

  3. •

    third party funding

  4. •

    insolvency-specific funding methods

  5. •

    after the event insurance

Conditional fee agreements

A conditional fee agreement (CFA) is an agreement for the provision of litigation services with a solicitor and/or barrister where a percentage of the fees charged are contingent on the

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Latest Restructuring & Insolvency News

Challenging administrator appointments–improper purpose and Braganza duty (Glint Pay Ltd & others v Baker and Rowley)

Restructuring & Insolvency analysis: The High Court considered the validity of administrators’ appointments, made ‘out-of-court’ by a secured creditor under paragraph 14 of Schedule B1 to the Insolvency Act 1986 (IA 1986), where: (i) the appointments were made under security which the appointing creditor had acquired (together with the underlying debt) with the specific intention of calling an event of default and then acquiring the borrowers’ business and assets out of administration, and (ii) the companies were not actually insolvent, the event of default relied upon to render the security enforceable was the companies’ failure to provide information. The administrators sought reverse summary judgment and succeeded, the court finding that the appointing creditor was not subject to a Braganza duty and nor was its purpose in making the appointments improper.Written by Sam Fenwick, Partner, and Isabelle Burnett, Solicitor Apprentice, at Wedlake Bell LLP.

Scotland—ICAS announces August 2025 insolvency technical update

The Institute of Chartered Accountants of Scotland (ICAS) has announced multiple insolvency practice updates for August 2025. The Accountant in Bankruptcy has increased the no-evidence utility spending threshold from £143 to £146 per month from 1 October 2025 to 31 December 2025, to account for the increase in the gas and electricity price cap. Sheriff Principal Anwar of the Sheriffdom of Glasgow and Strathkelvin is seeking suitably qualified individuals to apply by 19 September 2025, for the role of court reporter focused on insolvency processes—applicants must be qualified insolvency practitioners with a minimum of ten years’ experience, and remuneration will be paid by way of fees to the insolvent estate. In a recent decision in the Outer House of the Court of Session, Lord Lake refused to grant first orders in the petition filed by Nicholas Parkin seeking the winding up of Ayres Wynd Developments Limited—a decision that provides guidance on the handling of disputed debts in winding-up proceedings.

Rational FX—court sanctions distribution plan amid regulatory uncertainty (Kicks and another v MLS-Multinational Logistics Services Ltd (a company incorporated in Malta))

Restructuring & Insolvency analysis: On the 28 July 2025, the court approved a distribution plan in the special administration of Rational Foreign Exchange Ltd (RFX), enabling the joint special administrators (Kristina Kicks and Edward Boyle of Interpath) (Special Administrators) to return safeguarded funds to customers. The Special Administrators also sought declaratory relief regarding the status of European domiciled customers, following the repeal of passporting rights under the Payment Services Regulations 2017 (PSR 2017) post-Brexit. RFX employed various methods to continue servicing European clients, some lacking proper regulatory basis. This required the Special Administrators to determine whether such clients were customers of RFX or separate European entities. This was a key issue given the shortfall in safeguarded funds available for distribution. The court granted the relief sought by the Special Administrators and set out guidance to assist in clarifying customer status. This case marks only the second reported judgment approving a distribution plan in respect of a payment services firm under rule 114 of the Payment and Electronic Money Institution Insolvency Regulations 2021 (2021 Regulations), and the first involving European domiciled business and a significant shortfall in safeguarded funds. In absence of specific guidance under the 2021 Regulations and the Payment and Electronic Money Institution Insolvency (England and Wales) Rules 2021 (2021 Rules), the court applied among other things the three-stage test from Re SVS Securities Plc assessing; (i) fairness and reasonableness of the proposed distribution; (ii) progress of the special administration; and (iii) adequacy of stakeholder engagement. Written by Brian Rostron, associate and Kelvin Riley, associate at Addleshaw Goddard LLP.

CATJ publishes updated Business and Property Courts of England & Wales Chancery Guide 2022

The Courts and Tribunals Judiciary (CATJ) has published the updated Business and Property Courts of England & Wales Chancery Guide 2022. Paragraph 3.17 specifically clarifies that arbitration claims applications under the Arbitration Acts 1950–1996 and related matters must follow the procedures set out in CPR 62 and PD 62, and must be issued in the Chancery Division when they relate to partnership or landlord and tenant disputes.

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