When a company or an individual enters into a formal insolvency or enforcement process, restrictions may be imposed on the ability of creditors or prospective creditors to bring claims against that insolvent company or individual. This is distinct from the commercial considerations of whether it is worth (economically or otherwise) bringing, or continuing with, a claim against an insolvent opponent. In a compulsory liquidation (ie a liquidation commencing with a winding-up order), claims and actions against the company in liquidation or its property are limited by virtue of a statutory stay that takes effect under section 130 of the Insolvency Act 1986 (IA 1986). The stay means

Claims brought under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) may be brought using either the Part 8 or the Part 7 procedure of the CPR. The Part 8 procedure is referred to as an ‘alternative’ procedure, and should be used where a party seeks a determination on a matter which is unlikely to involve a substantial dispute of fact (CPR 8.1(2)(a)). While CPR 64 governs claims relating to trusts (which would include a trust of land) and requires that Part 8 proceedings are brought in respect of such

It is commonly the case that an employment dispute will lead to a compromise, embodied in a settlement agreement. The right to bring an employment tribunal claim, eg for unfair dismissal, is a statutory right, and there are strict requirements relating to the contracting out of such right and other rights which must be complied with for the settlement

Money Claim Online can be used for claims for a specified sum of money of less than £100,000 (not including interest or costs) and the same rules apply in respect of costs as with any other claim issued under CPR Part 7. The fixed costs regime The claim will be subject to the fixed costs regime if no acknowledgement of service or defence is filed or if the claim is admitted by the defendant. In those circumstances, the claimant can request judgment via Money Claim Online by completing an online request form. Upon judgment being entered, the claimant’s legal representative is entitled to the fixed costs provided for under CPR 45.4 and set out in Table 2 of CPR 45, which for a claim in excess of £5,000 is between £30 and £70 depending on the

CPR Part 27.14 deals with costs on the small claims track and limits costs to fixed costs save where unreasonable behaviour by a party can be established. However, culminating in Chaplair v Kumari the court held that where a contractual right contained in a covenant of the lease providing an indemnity for those costs existed, the claim for costs is contractual; the recoverability of contractual costs follows from the contract and is not limited by CPR 27.14. As was made clear in cases such as Church Commissioners for England v Ibrahim), the contractual

Section 17 of the Landlord and Tenant (Covenants) Act 1995 (section 17 notice) allows a landlord by the service of a notice to recover rent and other sums due pursuant to the lease from former tenants and guarantors of the lease. The landlord must notify former tenants and guarantors of any default by the current tenant within six months of the default. The former tenant is entitled in such circumstances upon satisfying the debt to require the grant to them of an overriding

This Q&A assumes that the circumstances do not involve the making and acceptance of a Part 36 offer (for which different rules will apply). Without prejudice offers (and in particular without prejudice save as to costs offers, also known as Calderbank offers or letters) are a common way of seeking to compromise a case. The label of without prejudice means that the terms and contents of any proposed offer cannot be raised in court (save, in respect of offers made save as to costs, in respect of costs arguments) meaning that a party wishing to seek a settlement can make proposals safe in the

If the payment by the policyholder’s spouse was reimbursement in respect of their insurance premium payments there should be no issue in relation to insurance cover provided. Even if the insurer has not actually received payment of premiums the policy would remain valid unless it is subject to a premium payment warranty that has been

You may wish to consult the following Q&As which consider similar scenarios: • Where a supplier (B) has emailed an invoice to A for goods supplied by B to A (and which were received by A) but the email was hacked by an unknown third party (C) and B’s bank details for payment were substituted with C’s, such that A pays C and not B, can B recover the invoice sum from A? • A is a customer of supplier B. Where A has mistakenly paid third party C, as a result of C having hacked into B’s records and issued an (false) invoice apparently in the name of B, but payable to C’s account, is B liable to A in damages for the money A paid to C? Who

The answer to this question will depend upon: • the terms of the rent deposit deed • whether the lease is an ‘old’ or ‘new’ tenancy for the purposes of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) • whether the rent deposit provides that the deposit is to be held by a third party as stakeholder If the lease is a ‘new’ tenancy If the lease is a ‘new’ tenancy (ie entered into on or after 1 January 1996), the obligations on the part of the landlord and the tenant under the rent

Residential property for SDLT purposes is defined in section 116 of the Finance Act 2003. This provides that residential property means: • buildings (including any part of any buildings) that are used as a dwelling, suitable for use as a dwelling, or in the process of being constructed or adapted for use as a dwelling

For the purposes of this Q&A, we have assumed that this is a relevant property trust. Transfer of assets to a trust The requirements for the transfer of assets to a trust are the same as those for creating a trust. In order to create a valid voluntary settlement, the settlor must have done everything necessary in order to transfer the property to the trustees. The transfer must be legal to be effective and must not be against public policy or the law. Where the settlor makes a voluntary settlement and it is not completely constituted, it will be unenforceable. The court will not complete an incomplete gift. The property must be transferred into the trust in the appropriate format according to the nature of the property.