Restructuring & Insolvency analysis: The High Court allowed an appeal and restored the order of the judge in the first instance permitting the appellant to serve a winding up petition out of the jurisdiction on a sub-fund in Luxembourg (the sub-fund). The sub-fund sat within an umbrella company comprised of a number of sub-funds whereby investors would purchase designated shares, their investment would be ring-fenced, and rights associated with these shares in liquidation would be limited to the assets of the sub-fund. The appellant invested in shares within the umbrella company designated to the sub-fund. In overturning the previous decision, the judge gave guidance on the correct test to apply when considering permission to serve a petition outside the jurisdiction and whether the sub-fund, as an unregistered entity, was capable of being wound up. Written by Kirsten Fulton-Fleming, a senior associate at Taylor Wessing LLP.

A party who has the intention to attend the hearing, must give written notice to the petitioning creditor or their solicitors, in accordance with Rule 7.14 of the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024. If a person fails to give notice of their intention to attend the hearing under IR 2016, SI 2016/1024, r 7.14, they may only appear at the hearing of the petition

Pursuant to section 3(4) of the Charging Orders Act 1979, a charging order ‘shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the debtor by writing under his hand’. Thus, a charging order provides,

We have previously answered a similar question in relation to a bankruptcy petition, see Q&A: How, if at all, does payment of part of the debt stated affect a statutory demand for the purpose of presenting a bankruptcy petition? We cannot see that the position is any different in relation to a winding-up petition; ultimately, where a statutory demand requires settlement of a specified sum of money and only part of that sum is paid, a balance remains payable (unless the sum paid is tendered—and accepted by the creditor—in full and final settlement, and/or the date for payment of the balance is

This note aims to: • provide practical guidance to creditors owed money by a distressed/insolvent company • explain the position of creditors in most types of corporate insolvency situations • provide advice on what a creditor can do to maximise their position if a company enters into formal insolvency proceedings—both before and during. This guide does not cover: • individual bankruptcies. See Practice Note: Creditors' bankruptcy petitions—grounds and documents required for presentation • partnerships. See General partnerships and insolvency—overview • the detail surrounding corporate insolvency processes • debt recovery options against live companies The fact that a company is insolvent and so unable to pay its debts as and when they fall due (as defined by the IA 1986, s 123) means that there will only ever be a limited pot of money available for all creditors, and it is the unsecured creditors which inevitably end up with little or no return (see Practice Note: Where the value breaks and negotiating strength). This guide

A debenture is a written agreement between a lender and a borrower giving security (whether by fixed or floating charge) over the assets of a company, and is registered at Companies House. Section 859A of the Companies Act 2006 (CA 2006) provides that a charge created by a company must be registered by the registrar provided that a CA 2006, s 859D statement of particulars is delivered to the registrar within a period of 21 days after the creation of the charge unless an order extending time has been made. The particulars required do not include the registered address of the company and therefore an error in a debenture referring

Limitation issues when enforcing a judgment Section 24(1) of the Limitation Act 1980 provides that an action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable. However, as seen in commentary: Restrictions on application of the Limitation Act 1980: Halsbury's Laws of England this time limit is concerned with actions on judgments, rather than issuing execution of a judgment: ‘Despite the wide definition of 'claim' contained in s 38(1), the time limit on enforcement of judgments set out in s 24 only applies to the enforcement of judgments by suing on them and does not apply to the issue of executions on judgments for which leave of the court is required, after six years have elapsed, by CPR Sch 1 RSC Ord 46 r 2(1)(a): see WT Lamb & Sons v Rider; applied

Limitation issues when enforcing a judgment Section 24(1) of the Limitation Act 1980, provides that an action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable. However, as seen in Commentary: Restrictions on application of the Limitation Act 1980: Halsbury's Laws of England [918], this time limit is concerned with actions on judgments, rather than issuing execution of a judgment: ‘Despite the wide definition of 'claim' contained in s 38(1), the time limit on enforcement of judgments set out in s 24 only applies to the enforcement of judgments by suing on them and does not apply to the issue of executions on judgments for which leave of the court is required, after six years have elapsed, by CPR Sch 1 RSC Ord 46 r 2(1)(a): see WT Lamb & Sons v Rider; applied

Insolvency (England & Wales) Rules 2016 (IR 2016), SI 2016/1024, r 10.2 provides that a creditor must do all that is reasonable to bring the statutory demand to the debtor’s attention and, if practicable in the particular circumstances, serve the demand personally. It does not mandate obtaining an order for substituted service where personal service is not practicable, (as would be required to effect service of any subsequent bankruptcy petition). Where personal service is not practicable, the creditor should follow the guidance as set out in the Practice Direction on Insolvency Proceedings (PDIP), which provides: ‘11.2 Rule 10.2 applies to service of a statutory demand whether within or out of the jurisdiction. If personal service is not practicable in the particular circumstances,

The effect of failing to give a creditor notice of an individual voluntary arrangement (IVA) The fact that the creditor client has not received notice of the IVA (intentionally or otherwise) is not determinative of whether they are bound by its terms. Section 260 of the Insolvency Act 1986 (IA 1986) provides that the effect of approval of an IVA is to bind every person who was entitled to vote at the time the creditors decided to approve the proposal, or would have been so entitled if they had had notice of it. Unless the proposal has made express provision for certain creditors

A person is generally free to leave their property by Will to whomsoever they may choose, provided that the Will complies with the necessary formalities relating to its execution contained within section 9 of the Wills Act 1837. In this scenario, it appears clear that the deceased was the legal and beneficial owner of the relevant property, and that it has been left to the partner by Will, meaning that, subject to an assent or

See Practice Note: Intestacy—summary, which explains that, where the deceased died after 30 September 2014 leaving a surviving spouse or civil partner and, in accordance with section 1 of the Inheritance and Trustees' Powers Act 2014 the net estate exceeds the amount of the fixed net sum (£250,000 as at 1 October 2014), the surviving spouse or civil partner is entitled to personal chattels and the fixed net sum free of inheritance tax and costs, with simple interest from date of death. Half of the remainder of the estate is held on trust absolutely for the surviving spouse/civil partner. The other half