Banking and Finance analysis: Timothy Bromley-White, solicitor at Macfarlanes LLP, discusses the implications of company voluntary arrangements (CVAs) and the new restructuring plan on real estate finance (REF) lenders during the coronavirus (COVID 19) pandemic. He provides an overview of the current usage of CVAs, noting that the overall decrease in their use disguise a marked increase in the use of CVAs in the hospitality, retail and fashion sectors. He concludes that REF lenders investing in these sectors may need to consider the underlying business of the tenants more closely than they might have had to do in the past.

Restructuring & Insolvency analysis: The court held that a director of a company who had applied for two government-backed Bounce Back Loans for the maximum sum on each occasion, and far in excess of what was permitted with regard to the company’s turnover, was guilty of fraudulent trading, extending the circumstances in which the court will make such a finding. Further, the court held that sums which had been paid from the company’s account to a third party letting agent (which was the landlord under a lease agreement) for the lease on the director’s personal residential property ought to be repaid by the letting agent, notwithstanding that the letting agent had given consideration by letting the property. The court noted in particular that this was proper where the letting agent had notice that the paying party was the company rather than the director. Written by Bertie Beor-Roberts, barrister at Enterprise Chambers.

In the majority of cases, a winding-up petition is issued by a creditor of the company under section 122(1)(f) of the Insolvency Act 1986 (IA 1986) on the basis that the company is unable to pay its debts, but there are other circumstances where a winding-up petition can be issued. For further reading, see Practice Note: Compulsory liquidation—issuing a petition. Under the Corporate Insolvency and Governance Act 2020 (CIGA 2020), restrictions are placed on winding-up petitions. CIGA 2020 creates a new, additional condition that the creditor must, in general terms, additionally be able to demonstrate that it has reasonable grounds for believing that coronavirus (COVID-19) has not had a financial effect on the debtor company, or the debtor company would have been insolvent even

The issue of vaccinating staff, who work with vulnerable people, against coronavirus (COVID-19), is particularly relevant following the approval of vaccinations and the prioritisation of such staff. Although section 45B of the Public Health (Control of Disease) Act 1984 (PH(CD)A 1984) allows for regulations to make provision, among other things, for the medical examination, detention, isolation or quarantine of persons, and PH(CD)A 1984, s 45C allows for regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection, PH(CD)A 1984, s 45E specifically prevents the inclusion of provisions requiring a person to undergo medical treatment, including vaccination and other prophylactic treatment. It is therefore not permitted for the government to require individuals to be vaccinated. Likewise, there is no provision that allows an employer to compel an employee to be vaccinated,

Clare Ambrose, Twenty Essex The obvious advantage is that the hearing can take place and the dispute resolved which is the ultimate aim of the tribunal. The tribunal’s duties of fairness to the parties do not require a hearing to take place in person, and if the arrangements will enable the hearing to go ahead then this will be a significant consideration justifying it. There is also a potential upside in costs savings as while there may be a cost to use the best technology, savings in hearing rooms and travel/hotels could be significant. Virtual hearings are still new, so practice is developing to address logistics. The technology options are wide and require investigation. To make the hearing work effectively, all participants in the arbitration need to test their technology in the space where the virtual hearing will (for each of them) be held. While

For the purpose of this Q&A we have assumed that the property is in England. The Coronavirus Act 2020 altered the periods of notice required to seek possession of properties let under many species of tenancy. However, it did not alter the period

The version of section 21 of the Housing Act 1988 (HA 1988) in force on 19 June 2020 provided that the court can order possession of a dwelling house if satisfied that three months’ notice in writing had been given to the tenant. That is because paragraph 7 of Schedule 29 to the Coronavirus Act 2020 (CA 2020) substitutes into HA 1988, s 21 the words ‘three months’ in place of the usual ‘two months’. The prescribed form of section 21 notice is set

At present, HM Courts and Tribunals Service have confirmed that, generally, the business of the courts and tribunals is continuing. The guidance is that as long as court users do not have confirmed or possible coronavirus (COVID-19) infection or do not need to self-isolate in line with the National Health Service advice, they should continue to use the courts as usual. In the event that they are unable to attend either due to illness or the need to self-isolate, they should contact the court. Can the hearing proceed in the person’s absence? The first point to consider is whether the hearing can proceed without whoever is unable to attend. Depending on the notice given, it may be possible to find alternative counsel or to set up telephone/video-conferencing arrangements, which is something that has been advocated by the Lord Chief Justice. For further guidance, see Practice Notes: • Remote and hybrid hearings

Insurance & Reinsurance analysis: Does a disease clause that requires physical damage make sense? Bellini is a restaurant in Sunderland that was closed as a result of the Covid lock-down. It had a licensed premises policy with business interruption cover that apparently included an extension for ‘Murder, suicide or disease’. But its claim was denied because the clause required there to have been ‘damage’, defined as ‘physical loss, physical damage and physical destruction’. The Commercial Court held that that was right, and that result has now been upheld by the Court of Appeal. The case concerns the limits of the ability of the court to correct what are alleged to be obvious mistakes in an insurance policy–and revisits the question of illusory cover, one of the reasons given by the Supreme Court in FCA v Arch for taking an expansive approach to causation, but with a somewhat different result. Written by Neil Hext KC, barrister at 4 New Square Chambers.

During the current coronavirus (COVID-19) outbreak, it is likely that the day-to-day business of the courts will be disrupted due to, among other things, short-notice staff absences and changing guidance from HM Courts and Tribunals Service, the Ministry of Justice and the Judiciary. However, the guidance produced so far suggests that courts are endeavouring to continue to provide access to justice for those cases which require it. While the courts remain open, it should be possible to undertake all of the steps listed in this Q&A, such as making applications, paying fees and filing documents. Similarly, although the work of courts may become delayed, there is no indication that court staff will not, for

From 28 September 2020, if a self-isolating worker is due to work or undertake any other employment-related activities during the isolation period (other than working at home or the place where they are self-isolating), they must notify their employer that they are required to self-isolate, giving the start and end dates of the isolation period. That notification must be given as soon as reasonably practicable and in any event before the worker is next due to start work within the isolation period. Once an employer is aware that a self-isolating worker (or agency worker) is required to self-isolate, the employer must not knowingly allow the worker (or self-isolating

The European Data Protection Board (EDPB) has published a short reply to a letter from Vice-President of Amazon EU Sarl, Barbara Scarafia, regarding Amazon and coronavirus (COVID-19).