Restructuring & Insolvency analysis: In this judgment, Deputy Insolvency and Companies Court Judge (ICCJ) Agnello QC provided some helpful observations on the amended provisions in Schedule 10 to the Corporate Insolvency and Governance Act 2020 (CIGA 2020), and the application of the ‘coronavirus (COVID-19) test’ as set out in CIGA 2020, Sch 10, para 2 (4)(a)–(b), and CIGA 2020, Sch 10, para 5. The only other main reported decision dealing with the coronavirus test is that of ICCJ Barber in Re A Company (application to restrain advertisement of a winding up petition). In Newman, Deputy ICCJ Agnello QC approved of the approach taken by ICCJ Barber in Re A company and confirmed that the threshold requirement found at CIGA 2020, Sch 10, para 5(1)(c) in satisfying the coronavirus test is intended to be a low one. While the threshold test may be low, the judge differentiated this case from the case in Re A Company. ICCJ Barber not only had documents, but the evidence before her was certainly more detailed which entitled her to find that the company had satisfied the low threshold test. In contrast, in Newman, despite the low threshold, the company had failed to demonstrate even a prima facie case of showing that coronavirus had a financial effect on the company. Written by Maria Mulla, barrister, at No 5 Barristers’ Chambers who acted for the petitioner in this case.

This Practice Note gives guidance as to when and how to apply for the appointment of a provisional liquidator after the presentation of a petition but before the making of the winding-up order. Applying for the appointment of a provisional liquidator The appointment of a provisional liquidator under section 135 of the Insolvency Act 1986 (IA 1986) is very much an application of last resort and one that should only be made after careful consideration of all the relevant evidence and the possible cost consequences to the applicant: • the appointment of a provisional liquidator to a trading company is one of the most serious steps a court can take, since it is likely in many cases to have a terminal effect on the company’s trading life. See Revenue & Customs Commissioners v Rochdale Drinks Distributors • given the potential seriousness of the appointment of a provisional liquidator, in the case of a creditor’s petition, the petitioner must show as a threshold test that they were likely to obtain a winding-up order

Section 127(1) of the Insolvency Act 1986 (IA 1986) provides that in a compulsory liquidation, any disposition of the company's property after the commencement of the winding up (ie after the date that the winding up petition was presented) is void. For more information, see Practice Note: Validation

Paragraph 40, Schedule B1 to the Insolvency Act 1986 (IA 1986) provides that a winding-up petition is suspended when a qualifying floating charge holder (QFCH) appoints an administrator. The suspension of the winding-up petition is mandatory and is not affected by the requirement to advertise the petition in the gazette.

Private Client analysis: Irwin Mitchell’s trust corporation are appointed as Deputy in a substantial number of cases. In a significant proportion of those Deputyships they have appointed as asset manager, Irwin Mitchell Asset Manager (‘IMAM’). IMAM is within the Irwin Mitchell group. The funds under management by IMAM exceed £1bn. It is likely that other law firms and investment advisers have adopted similar practices, appointing asset managers owned by them or with whom they have a direct financial relationship. The court considered whether, in the case of PW, the appointment gave rise to an actual conflict of interest and whether the process by which IMAM was appointed avoided that conflict of interest. It also considered whether the practice of appointing connected asset managers had become approved by the Court or the Office of Public Guardian (‘OPG’). The court decided that the appointment was voidable, due to the conflict of interest and rejected the argument that the practice had become approved. It will decide at a later date whether to actually set the appointment aside. Written by Richard Dew, barrister at Ten Old Square.

The circumstances in which a dominant company may grant rebates to its customers to encourage them to purchase from it is one of the most complex and controversial aspects of Article 102 TFEU. On the one hand, such rebates (which, after all, are a common feature of commercial life) may be efficiency-enhancing. On the other hand, the availability of rebates for customers who purchase from a dominant supplier may make it harder for a competitor to tempt away those customers and hence entrench the supplier’s dominant position. While it is in principle possible to balance these objectives by assessing the effect of a rebate scheme, this typically requires an extensive factual analysis, which can make it difficult to know in advance whether a specific rebate scheme will be unlawful. For some time, there has been a long-running debate over the extent to which the European Commission (Commission) can condemn such rebates in principle, based only on their form, or whether it must first demonstrate that they are likely to lead to anti-competitive harm, by reference to

Employment analysis: The approach of the Supreme Court in Patel should be applied in employment cases dealing with illegality but the principles in previous employment law decisions, such as Hall and Helbawi, remain of value unless it can be shown that they are not compatible with the Patel approach, according to the Court of Appeal.

Law360: In the intricate dance of courtroom battles, the act of apologising occupies a controversial and often paradoxical position.

Commercial analysis: How will the court consider the measure of loss under the Sale of Goods Act 1979 (SGA 1979) in relation to lost profit? Paul Jonson, head of Pannone’s dispute resolution and regulatory division, comments on a recent ruling of the Commercial Court and says drafting successful exclusion clauses is becoming something of an art form.

Arbitration analysis: This article briefly explores the advantages and disadvantages of adopting arbitration as the agreed dispute resolution process for art related disputes. It touches on the recent rise in case law on this area and predictions for the future in respect of arbitration and the art world. Written by Lucy Keane, FCIArb, 33 Bedford Row, London.

Section 25(2)(a) of the Matrimonial Causes Act 1973 (MCA 1973) provides that the court must have regard to: '…the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.' Equivalent provisions are contained in the Civil Partnership Act 2004 (CPA 2004) at CPA 2004, Sch 5 Pt 5, para 21(2)(a). First (but not paramount) consideration is given to the welfare, while a minor, of any child of the family who has not attained the age of 18. The court will often consider 'property and other financial resources' separately from income and earning capacity, but the two issues may also be interlinked, see Practice Note: Income and earning capacity of the parties. For practical guidance on all of the factors to be considered by

Waiver A landlord will waive the right to forfeit, if in full knowledge of a breach of covenant, he takes steps which unequivocally confirms the existence of the lease. Examples include demanding and accepting rent, and it is likely that the service of a section 17 notice on a former tenant and guarantor would also