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Brexit legislation tracker

This Practice Note tracks the progress of UK legislation introduced as part of the legislative project associated with the UK’s withdrawal from the

Bankruptcy petitions—process and procedure

Before the hearing of the creditors’ bankruptcy petition takes place, there are a number of steps that must be taken to comply with the procedural

Business and Property Courts—the disclosure pilot scheme

IntroductionThis Practice Note considers the disclosure pilot scheme which applies across the Business and Property Courts as of 1 January 2019. The

Compulsory winding up of a company—the process and procedure

STOP PRESS: The Corporate Insolvency and Governance Act 2020 contains provisions which, on a temporary basis (presently until 31 December 2020) impose

Practice notes

Business and Property Courts—the disclosure pilot scheme

IntroductionThis Practice Note considers the disclosure pilot scheme which applies across the Business and Property Courts as of 1 January 2019. The...

20th Oct

Practice notes

Restructuring & Insolvency—new starter guide

Welcome to the world of restructuring and insolvencyRestructuring and insolvency covers a variety of different processes and tools designed to achieve...

15th Oct

Practice notes

What effect does an insolvency process have on ongoing litigation and arbitration proceedings?

This Practice Note discusses:•the effect of an insolvency process on pending court proceedings in which the debtor, bankrupt or insolvent company is a...

15th Oct

Practice notes

Administration—an introductory guide

Administration is a procedure designed to give an entity breathing space, with a view to either a rescue or a restructure or to allow for a better...

15th Oct

Practice notes

The moratorium in administration

The moratorium is at the very heart of the administration process, which is seen as one of the key tools for a company rescue or restructure of the...

Produced in partnership with Kate Rogers of St Philips Chambers 15th Oct

Practice notes

What is a statutory demand?

This Practice Note looks at what a statutory demand is and what it seeks to achieve in both corporate and personal insolvency. It assumes that the...

15th Oct

Practice notes

The process of disclaimer by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986

This Practice Note covers the process of disclaimer and the steps to be taken to disclaim. For guidance on what disclaimer is and what can be...

Produced in partnership with Robert Hantusch of Three Stone 15th Oct

Practice notes

Effect on proceedings against a company being wound up and after a winding-up order is made

This Practice Note sets out guidance as to what happens when:•proceedings have been commenced against a company and a winding-up petition is presented...

Produced in partnership with Eleanor Holland and Karl Anderson of 4 Stone Buildings 15th Oct

Practice notes

Misfeasance claims under section 212 of the Insolvency Act 1986

What is a misfeasance claim under section 212 of the Insolvency Act 1986?Claims commenced under section 212 of the Insolvency Act 1986 (IA 1986) are...

13th Oct

In-house

Practice notes

Waterfall of payments in administration—the position under the Insolvency (England and Wales) Rules 2016

The order of distribution of a company’s assets in administration is found in the Insolvency Act 1986 (IA 1986) and the Insolvency (England and Wales)...

Produced in partnership with Robert Avis of XXIV Old Buildings 12th Oct

Practice notes

Waterfall of payments—a comparative guide

LiquidationThe order of distribution in liquidation, following the realisation of security by secured creditors (other than those with floating...

Produced in partnership with South Square 12th Oct

Practice notes

Practice Direction on Insolvency Proceedings

Coronavirus (COVID-19)This content contains guidance on subjects impacted by the Coronavirus Act 2020 and related changes to court procedures and...

5th Oct

Practice notes

What assets vest in the trustee in bankruptcy and what steps does the official receiver or trustee in bankruptcy need to take?

Definition of property and some general principlesProperty is defined very widely in section 436 of the Insolvency Act 1986 (IA 1986), and includes...

26th Sep

Practice notes

When can you wind-up a company when the debt is disputed?

It is a long-established principle that winding-up proceedings should not be commenced where the petition debt is genuinely disputed on substantial...

26th Sep

Practice notes

Key elements of a standstill agreement

When restructuring is considered rather than formal insolvency proceedings (see Practice Note: Benefits of restructuring over formal proceedings) the...

25th Sep

Practice notes

Property that vests in the trustee in bankruptcy on bankruptcy and how the trustee in bankruptcy ascertains the extent of their interest in it

One of the main functions of the trustee in bankruptcy (trustee) is, in accordance with section 305(2) of the Insolvency Act 1986 (IA 1986), to get...

25th Sep

Most recent Q&As content

Q&As

I need to serve a claim form in an EU Member State. Given coronavirus (COVID-19), what do I need to think about? What are likely to be barriers in being able to effect valid service?

The first point to note is that service in accordance with the provisions of Regulation (EC) 1393/2007, the Service Regulation is mandatory, and it is...

Produced in partnership with Ryan Hocking of Hardwicke Chambers 28th Sep

COVID-19

Q&As

I need to serve a claim form in a Hague Convention State. Given coronavirus (COVID-19), what do I need to think about? What are likely to be barriers in being able to effect valid service?

It is assumed that the reference to the ‘Hague Convention’ is to the Hague Service Convention, concluded as part of the Hague Conference on Private...

Produced in partnership with Ryan Hocking of Hardwicke Chambers 28th Sep

COVID-19

Q&As

Under the CPR rules I need to effect personal service. Is this being relaxed due to coronavirus (COVID-19)? What happens if I cannot serve on the defendant personally?

At the time of publishing, the Master of the Rolls has issued three updates (numbers 116–118) which modify provisions of the CPR to reflect the impact...

Produced in partnership with Sarah Clarke of Hardwicke Chambers 28th Sep

COVID-19

Q&As

Given coronavirus (COVID–19), I am struggling to serve the claim form and the defendant will not agree to service by email. Can I just serve it by email and then rely on CPR 3.10 to validate service?

Assumption: it is assumed that you have already advised the court that you will serve the claim form rather than choosing the default position that...

Produced in partnership with Lauren Godfrey of Hardwicke Chambers 28th Sep

COVID-19

Q&As

A statutory demand is served on an individual, the debt is paid, but the demand is not withdrawn. Where subsequent arrears have fallen due a year later, can the creditor rely on the original demand as a ground for presenting a bankruptcy petition? If a bankruptcy petition is presented on that basis, can the petition be amended to include the subsequent arrears?

Once a statutory demand is served failure by the debtor to pay the debt within 21 days of service of the statutory demand or to satisfy or secure it...

Produced in partnership with Eleanor Stephens 28th Sep

Q&As

A key witness (expert or factual) cannot attend an in-person hearing scheduled for my arbitration over the next few months due to travel restrictions. How should I approach this issue vis-a-vis the witness, the client, the other side and the tribunal?

Clare Ambrose, Twenty EssexThe party’s representative should consult with the witness and the other side. It would be unusual if a solution cannot be...

28th Sep

Q&As

An in-person hearing is scheduled for my arbitration over the next few months. In light of coronavirus (COVID-19), what should I be thinking about, what alternatives may be available (eg relocation, postponement, virtual hearing(s)), what considerations are relevant when contemplating these options, and how would alternative approaches be dealt with procedurally with the other side and the tribunal?

Clare Ambrose, Twenty EssexWe all know the crisis is fast-moving. Arrangements that seemed sensible a week ago now look unrealistic or...

28th Sep

COVID-19

Q&As

A virtual hearing has been proposed for my arbitration in light of coronavirus (COVID-19). What practical and logistical matters will need to be considered in advance? What are the potential advantages and disadvantages of this approach?

Clare Ambrose, Twenty EssexThe obvious advantage is that the hearing can take place and the dispute resolved which is the ultimate aim of the...

28th Sep

COVID-19

Q&As

Can an agreement be terminated for frustration due to coronavirus (COVID-19)?

What is the doctrine of frustration?If the contract does not include a force majeure clause or it does but the applicable force majeure event is not...

28th Sep

COVID-19

Q&As

If I can’t meet the people I am contracting with to sign a contract, how do I execute a contract by virtual means?

Many businesses are closing their offices or recommending their staff work from home in an attempt to slow the spread of coronavirus (COVID-19). This...

28th Sep

Q&As

Does the practice of conferring an equitable mortgage by the mortgagor handing over possession of share certificates and signed but undated share transfer forms to the lender satisfy the control or possession requirement for purposes of the Financial Collateral Regulations?

SummaryAlthough there is no reported authority directly considering this issue, it seems clear that handing over share certificates and transfers...

Produced in partnership with Robin Kingham of Gough Square Chambers 28th Sep

Q&As

What is the status of a deposit paid under a contract upon termination for insolvency?

This Q&A considers a scenario where:•there is a business-to-business commercial contract which is not subject to specific industry or sector...

Produced in partnership with XXIV Old Buildings 28th Sep

Q&As

If a customer of a supplier goes into an insolvency process, is it possible to recover debts owed directly from the customer’s end users? If not, what options are open to recover money owed?

Privity of contract'Privity of contract' is a common law doctrine, which provides that you cannot either enforce the benefit of, or be liable for any...

28th Sep

Q&As

What are the implications of coronavirus (COVID-19) for MAC clauses in facility agreements?

Why are material adverse change (MAC) clauses in the spotlight?The coronavirus (COVID-19) outbreak has already caused some businesses to fail and...

28th Sep

COVID-19

Q&As

Can a crystallised floating charge be de-crystallised?

Crystallisation of floating chargesA floating charge may Crystallize by operation of law or it may Crystallize in accordance with a contract....

28th Sep

Q&As

Is there any use in practice of a charge that is registrable at Companies House but has not been registered, ie does it confer any benefit at all on a chargee?

Registration of charge with Companies HouseCompanies Act 2006, s 859A (CA 2006) requires that any charge created by a company be registered with...

Produced in partnership with Peter Susman of Henderson Chambers 28th Sep

Q&As

Does a guarantee have to be executed as a deed?

No, a guarantee does not have to be executed as a deed. A guarantee can be executed as a deed or as an agreement in English law.A guarantee does have...

28th Sep

Q&As

When might it be necessary to register a retention of title clause at Companies House?

What is a retention of title clause?At its simplest, a retention of title clause allows the seller to retain title to goods which it has delivered to...

28th Sep

Q&As

I've just noticed that an executed document has the wrong date on it. What should I do?

The first thing you need to do is insert the correct date in the document which has been incorrectly dated. It is important that the date on the...

28th Sep

Q&As

Can a mortgagee redeem a prior ranking mortgage and if so in what circumstances?

Does a mortgagee have the right to redeem a prior ranking mortgage?This is a fairly complicated area but in short there will be situations in which a...

28th Sep