Company voluntary arrangements

This topic deals with company voluntary arrangements (CVAs) in the context of property insolvency.

A CVA is an agreement between a company and its creditors and is the corporate equivalent of individual voluntary arrangements (IVAs) for individuals. The main benefits of CVAs include:

  1. there is no need to prove insolvency, so action can be taken early at the first signs of distress

  2. dissenting unsecured creditors can be crammed down if the CVA is approved by 75% in value of creditors present in person or by proxy and voting on the proposal (and not opposed by more than 50%

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Commercial Court gives guidance on pleading and proving claims under section 423 of the Insolvency Act 1986 (Invest Bank PSC v El-Husseini)

Restructuring & Insolvency analysis: The Commercial Court dismissed a claim under section 423 of the Insolvency Act 1986 (IA 1986) that the first defendant (Mr El-Husseini) had transferred valuable assets to eight transferee defendants, being his family members, companies under their control and a discretionary trust, with the purpose of putting the assets beyond reach of the claimant (Invest Bank) as a potential creditor. The court held that the allegations advanced at trial were of serious wrongdoing amounting to dishonest behaviour or disreputable conduct which accordingly required a clear pleading of a sufficiently cogent case. Invest Bank had not properly pleaded in its particulars of claim the primary facts on which it sought to rely at trial in raising its case based on inference against the defendants. A positive case as to the financial difficulties of one of the key companies was only raised in a reply to the defence of one of the eight defendants. In any event, without expert accountancy evidence as to the state of finances of the key companies the court could not draw any inferences as to Mr El-Husseini’s purpose. The court also declined to draw adverse inferences from Mr El-Husseini’s failure to participate in the proceedings after a failed jurisdiction challenge, and he gave guidance on the law and practice in that regard. Written by Tiffany Scott KC, barrister at Wilberforce Chambers.

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