Aileen McErlean

Areas of expertise

• Commercial litigation & arbitration

  Commercial litigation & arbitration

  Aileen has experience in a wide range of commercial disputes arising out the sale of goods and services, security and title-based financing, commercial agency, share purchase agreements and joint ventures.

  An incisive cross-examiner, Aileen has particular expertise in cases involving allegations of fraud, deceit, breach of fiduciary duty, knowing receipt and dishonest assistance. She is also well-versed in the steps necessary to preserve assets (e.g. freezing orders, search orders, door-step delivery up) and equitable remedies including tracing and accounts of profits.

  Aileen has experience of domestic and international arbitration (under various institutional rules) and acts in all manner of applications under the Arbitration Act: to stay arbitral proceedings, challenges to the validity of appointments and challenges to enforcement of arbitral awards.

  Highlights include:

  • Popely [2022] EWHC 3217 (Ch) and [2023] EWHC 2895 (Ch). Complex cross-border civil fraud and unlawful means conspiracy claim. Succeeded in appealing the adverse findings made against her client (a non-party to the original claim). Popely is now one of the leading cases in this area.
  • Acting (with Nigel Jones KC) for the successful respondent in high-value international arbitration involving allegations of breach of contract and bad faith in a cross-border fractional membership scheme; and also in multiple linked proceedings for fraudulent misrepresentation against the defendant supplier under the CCA.
  • Acting (with David Lewis KC) for the claimants in a multi-million pound cross-border dispute arising out of a licence and development agreement in respect of a novel technology. The claim involved allegations of deceit, misrepresentation, breach of contract, breach of warranty and breach of confidence.
  • Successfully defending a claim for knowing receipt of client funds and dishonest assistance brought by a law firm against the wife of a former finance director.
• Insolvency & restructuring

  Insolvency & restructuring

  Aileen’s busy corporate insolvency practice encompasses the full range of originating applications (i.e. winding up petitions, winding up of foreign companies, appointment of administrators), CVAs and restructuring schemes.

  She is regularly instructed in urgent applications to restrain presentation or advertisement of petitions and has particular experience dealing with applications to restrain presentation of petitions where the underlying claims and cross-claims arise out of construction contracts.

  Aileen is frequently acts both for and against office-holders (and litigation funders) in respect of wrongful trading, misfeasance, preference claims and transactions at an undervalue. Aileen has particular experience in acting in applications which challenge office-holder decisions or seek to remove the office-holders for cause.

  She also has considerable experience acting for both individuals (creditors and debtors) and office-holders in relation to all aspects of bankruptcy proceedings and IVAs, including applications to set aside statutory demands, contested annulment applications and applications by office-holders to recover the assets in the bankruptcy estate.

  Highlights include:

  • Re: Rossi [2022] BPIR 1241: Acting for the creditor in a challenge to the decision of a creditor’s meeting approving an IVA and seeking that a new decision-making process be initiated.
  • Cash Generator v Fortune [2018] EWHC 674(Ch): Aileen acted for successful third respondent in the first case considering whether failure to comply with the process for creditors to nominate a liquidator under s.100 of the IA 1986 invalidated the subsequent appointment.
  • Cooke v Dunbar Assets Plc [2016] B.P.I.R 567: Appeal from a bankruptcy order on the basis that an offer to secure and compound had been unreasonably refused and Cooke v Dunbar Assets Plc [2016] B.P.I.R 1339, an important case on whether the costs of an appeal are a cost and expense of the bankruptcy or a post-bankruptcy debt.
  • Acting for a Championship Football Club in a contested statutory demand arising out of a high-profile claim following the death of a footballer.
  • Acting for the Joint Liquidators of an insolvent contractor to ascertain who owned the monies in the Project Bank Account.
  • Acting for the provisional liquidator of Enterprise Insurance Plc (Gibraltar), advising in respect of cross-border recognition of the provisional liquidation and successfully obtaining an order staying an imminent multi-million pound arbitration.
  • Acting for an office-holder in a contested BTO application where, following the departure of the office-holder from his firm, that firm sought to retain the appointments and a cross-application for a BTO in favour of an IP employed by them.
  • Acting for the wife of a bankrupt (against a leading silk) in a high-value claim by the Trustee in Bankruptcy against matrimonial assets in multiple jurisdictions subject to a trust. The case raised important issues in relation to the scope of the power an office-holder to revoke a Trust.
• Companies, joint ventures & partnerships

  Companies, joint ventures & partnerships

  Aileen advises companies, shareholders and directors in respect of a range of issues including: breaches of SPAs and shareholders agreements, breach of fiduciary duties, breaches of statutory duties under the Companies Act 2006, and unfair prejudice actions.

  Highlights include:

  • Acting for company in successful claim against former directors in respect of unlawful distribution of capital.
  • Acting for the successful director in an application for permission to act as a director of a company known by a prohibited name under s.216 of the Insolvency Act 1986, where the application was opposed by the liquidator of the old company.
  • Acting for the director of a construction firm in respect of multi-million pound claim for account of profits/equitable damages arising out of allegations of breach of duty and undisclosed conflict of interest.
  • Acting for the respondent shareholders of an international haulage company in respect of an unfair prejudice petition alleging fraud on the minority shareholder, failure to declare dividends and breach of a shareholder agreement.