Insolvency Newsletter: October 2023

Introduction

Welcome to the inaugural edition of the Insolvency Newsletter from Gatehouse Chambers. We hope this quarterly newsletter will be a welcome addition to your inboxes and will provide some insight into recent legal developments as well as what the team have been working on.  

This month Alaric Watson considers the significance of the Patley Wood v Kicks and Brake v Chedington for the world of personal insolvency, Ryan Hocking gives a run down of the recent and anticipated statutory and regulatory changes, we have a two minute interview with the newest member of the team, Victoria Dacie-Lombardo and we have summaries of some of the significant cases from the last quarter.  

Katrina Mather – Editor

What have the team been up to?

Jonathan Titmuss has spent much of his time recently assisting a bank in Nigeria in recovering monies lost as a consequence of a fraudulent scheme to purchase cargo planes. 

Sarah McCann presented a seminar on key issues in Construction Insolvency to the Society of Construction Lawyers and is currently before the Court of Appeal of Gibraltar in an appeal concerning amongst other issues the correct application of the test for insolvency in the context of an insurance company. 

Sarah Clarke has been advising administrators in respect of price fixing proceedings in the Competition Appeals Tribunal and litigation funding arrangements, following the PACCAR decision. 

Philipp Simon worked on two insolvency matters with an international connotation. One where English clients are battling it out with a Luxembourgish administrator in the Courts of Luxembourg and one where English creditors are pursuing a suspect bankrupt in Germany. 

Charles Raffin has been working on a number of offshore insolvency disputes and disputes with an insolvency angle. These include advising a Fund and former investors in, variously, claims against former trustees, banks and administrators, as well as advising/acting in connection with sets of just and equitable winding up and derivative proceedings.  

In the coming weeks, Phillip Patterson will be advising an individual accused of dishonest assistance in a high-value breach of trust by the administrators of a funeral plan savings company, acting for a trustee in bankruptcy in a section 366 application against a bankrupt and contesting a security for costs application in a complex and wide-ranging breach of duty claim against a company director, as well as a series of ongoing pieces of litigation for office-holders. 

Ryan Hocking appeared for a Respondent to a proprietary injunction application brought by a Trustee in Bankruptcy which threw up some interesting points about the nature of a trustee’s claim in relation to antecedent transactions.  He also delivered a talk about restructuring plans to the R3 Eastern Forum, before converting the same talk into doggerel verse for something called ‘Battle of the Bar’. 

Katrina Mather has had a busy month advising on numerous cases involving breaches of directors duties and the prospect of overturning a long line of authorities affecting creditors who receive money from a company subject to a winding up petition before the petition was advertised. Watch this space!  

James Shaw’s summer was spent on civil fraud and directors disputes, injunctions to restrain WUPs, and grappling with privilege. ‘Highlights’ (in the loosest sense) include fighting a security for costs application in a representative action brought in relation to 700+ investment vehicles against directors for breaches of fiduciary duty (and others for knowing receipt/dishonest assistance), striking out some claims which had in fact been compromised by a CVA, plus some time away in the sun to balance things out. 

Rob Hammond has been drafting funded claims for unlawful dividends/breach of fiduciary duty in the High Court; amending an unfair prejudice petition after R’s insolvency, to include knowing receipt and dishonest assistance claims against further Rs; and advising on the question of permission/consent to claim against Ds subject to foreign administration orders. 

News

We’re pleased to report this year’s excellent rankings for Gatehouse Chambers in The Legal 500, the 2024 edition of which was published at the start of October.

As well as being ranked in Tier 3 for Insolvency, the team now has 9 individuals ranked in this area, which is an increase of 3 members since last year:

• Sarah Clarke – Tier 3
• Jonathan Titmuss – Tier 3
• Wendy Parker – Tier 4
• Charles Raffin – Tier 4
• Alaric Watson – Tier 4
• Sarah McCann – Tier 4
• Katrina Mather  – Tier 5
• Aileen McErlean  – Tier 5
• Phillip Patterson – Tier 5

Our full rankings and testimonials can be viewed on The Legal 500 page for Gatehouse Chambers.

Many thanks to all of our clients for their feedback this year.

In other news, we have been shortlisted for Chambers of the Year at the British Legal Awards. Winners will be announced at the end of November.

Events

Insolvency Brew: Court Control of Office-Holders
19 October 2023, 4pm

Speakers: Alaric Watson, Jonathan Titmuss, Phillip Patterson and Aileen McErlean
Moderator: Victoria Dacie-Lombardo

Sign up via email at events@gatehouselaw.co.uk.

Court Control of Office-Holders: Applying the Brakes?

Under the Insolvency Act 1986 (IA 1986), office-holders are given wide powers but they are subject to the control of the court. In order to allow insolvency practitioners to carry out their duties efficiently and without having constantly to look over their shoulders, this control has always been exercised with a light touch.  In recent years there have been several important cases examining these issues.

Click here to read the full article by Alaric Watson.

Legal Update: Recent and Anticipated Statutory and Regulatory Changes

After the tumult of the past few years, with emergency legislation being introduced to mitigate the impact of the Covid-19 pandemic, the last few months have felt relatively quiet in terms of new legislation. That said, there have been a number of important government publications in relation to the insolvency industry, and it appears that change is on the horizon. 

Read the full article by Ryan Hocking here.

Case Law Round Up

Please click here to access summaries of notable cases from the previous quarter. First published via LexisNexis.

City Gardens Ltd v DOK82 Ltd [2023] EWHC 1149 (Ch) – Hong Kong jurisdictional clause did not prevent the English Court from determining whether there was a genuine and substantial dispute for the purpose of opposing a winding up petition.  

Re Great Annual Savings Company Ltd [2023] EWHC 1141 (Ch) – court refused a restructuring plan under Part 26A of the Companies Act 2006.  

HRH Prince Hussam Bin Saud Abdulaziz Al Saud v Mobile Telecommunications Company KSCP [2023] EWHC 1144 (Ch) – court allowed service of a bankruptcy petition out of the jurisdiction in circumstances where the debtor had long period of absences and disputed COMI.  

Town and Country Properties (GB) Ltd and Ors v Patel and Ors [2023] EWHC 1168 (Ch) – an unsuccessful appeal against a decision to dismiss a winding up petition, set aside a statutory demand and dismissing a bankruptcy petition on the basis that there was a genuine dispute as to whether there was a partnership.  

Authored by Ryan Hocking, Amanda Eilledge, Jonathan Titmuss and Alice Whyte.

2 minutes with Victoria Dacie-Lombardo

Contact us

If you would like to discuss any of the topics in this newsletter, please contact a member of our Practice Management Team:

Tom Street, Senior Practice Manager
Marc Gilby, Practice Manager
Amy McClean, Practice Manager

To find out more about our Insolvency Team and their work, visit the insolvency page on our website. To view a copy of our privacy statement, please click here.

This edition of the insolvency newsletter was edited by Katrina Mather. Comments or queries about this newsletter? Please get in touch with her!