If the court is satisfied that the floating charge contravenes section 245 of the Insolvency Act 1986, it will make a declaration

Section 239 of the Insolvency Act 1986 (IA 1986) is restitutionary in nature. If the court is satisfied that the transaction contravenes IA 1986, s 239, it has wide discretion to make any order it thinks fit for restoring the position to what it would have been but for the transaction. This may include: • requiring any property transferred as part of the transaction to be re-vested in the company • requiring property representing the subject-matter or the proceeds of sale of the property to be re-vested in the company • releasing or discharging any security given by the company • requiring any person to pay, in respect of benefits received by that person from the company, such sums to the administrator or liquidator as the court may direct • providing for any surety or guarantor whose obligations to any person were released or discharged under the transaction to be

Section 238 of the Insolvency Act 1986 is restitutionary in nature. If the court is satisfied that the transaction was at an undervalue, it has wide discretion to make any order it thinks fit for restoring the position to what it would have been but for the transaction. This may include: • requiring any property transferred as part of the transaction to be re-vested in the company • requiring property representing the subject-matter or the proceeds of sale of the

Any transaction found to fall under section 423 of the Insolvency Act 1986 (IA 1986) is not automatically void, but rather is voidable on the order of the court. While the court can order relief under IA 1986, s 423(2) and make such order as it thinks fit, in making an order the court must seek both to: • restore the position to what it would have been if the transaction had not been entered into, and • protect the interests of victims of the transaction While the court’s discretion is necessarily wide, IA 1986, s 425 sets out

This Q&A has taken into consideration the following questions: • What remedies are available to tenant A, direct against its neighbouring tenant B, where tenant B has constructed a terrace outside its demise and without other consent on a flat roof which is causing damage and disturbance to tenant A and its property?, and • Where the landlord under both leases is a company of which the only officers are tenant A and tenant B, what are tenant A’s remedies against its landlord, assuming both leases oblige the landlord to enforce tenant covenants? Claims against tenant B Trespass There may be a potential claim for trespass against tenant B if the airspace above flat A is demised. Generally, the accepted position is that there is no presumption in any lease of, or including, a roof that extends upwards to the full height of the airspace available to the lessor, see Rosebery Ltd v Rocklee Ltd. In H Waites Ltd v Hambledon

In answering this Q&A, we have assumed that the contract in question is a business to business (B2B) contract. From a practical perspective, much will depend upon what is provided

In answering this Q&A, we have assumed that the contract in question is a business to business (B2B) contract. A breach of contract is a failure to perform contractual obligations without lawful excuse. Remedies for breach of contract depend on the nature of the clause in the contract and the consequences of its breach. Breach of contract gives rise to a number of remedies. The remedies

Basis of liability in professional negligence claims Our Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity provides a useful outline for the initial considerations in bringing a clam for negligence. There are three options for the basis of the claim: Liability in contract: In most cases, there will be a contract between the professional and the client, eg between a solicitor and his client. There may be express or implied terms as to the performance of obligations under the contract and there may be attempts to limit or exclude liability for

The basis of litigation in employee competition situations will be the express and implied terms of the contract of employment between the employee and the current employer, or, if the employee has already left, the former employer. Obviously, the new employer is not a party to that contract of employment. Nor does it owe any direct duties to the current/former employer of the employee it wishes to recruit. However, it may nonetheless be made a party to in any litigation involving the target employee as a result of the operation of the economic torts. The relevance of these tortious claims in employee competition situations is that they provide a

Is it possible to obtain injunctive relief? An injunction is a discretionary remedy that takes the form of a court order and which requires a party to either refrain from doing something (prohibitory) or to specifically do something (mandatory). The courts are, generally, more willing to grant prohibitory injunctions than they are to order mandatory injunctions. An injunction is typically a temporary measure put in place pending the outcome of proceedings between the parties. They are generally only appropriate when the respondent’s alleged continued wrongdoing is likely to cause irreparable harm to the applicant’s interests before the issue is resolved at trial, which could not be adequately compensated by damages. For more information on interim injunctions and the legal tests which

Service of a notice to complete has the effect of making time of the essence of a contract for both parties, so that if completion does not take place on the new completion date specified in the notice, the innocent party can terminate the contract immediately, forfeit or recover his deposit with accrued interest (if applicable) and commence a claim for damages to recover any losses. In addition, a landlord may also have a potential claim for specific performance, requiring the tenant to complete the relevant contract

This question raises the issue of who can be liable for nuisance emanating from a property that has been let or sublet—can the landlord be liable in addition to the occupier who has caused the nuisance? The categories of potential defendant to a private nuisance claim include the creator of the nuisance and the occupier of the land (which may include licensors)—Cocking v Eacott. Landlords are only liable if they participate in, or authorise, the nuisance. They are not liable merely for