OVERVIEW
Welcome to the next edition of the insolvency insight bulletin from the insolvency specialists at Quadrant Chambers. All cases link to the relevant judgments.
Author: Emily Saunderson
Editors: Nicola Allsop and Emily Saunderson
Case law
- Al Jaber v Mitchell [2021]
EWCA Civ 1190: the Court of Appeal held that oral and written
statements made by an examinee in an examination under section 236
of the Insolvency Act 1986 enjoy immunity from suit. This
overturned the decision at first instance.
- Re Bedzhamov [2021] EWHC
2281 (Ch): a Russian bankruptcy order should be recognised in this
jurisdiction but there is no common law power to entrust real
property in England owned by a Russian bankrupt domiciled in
England to the Russian trustee in bankruptcy. There is no common
law power to declare that the property has vested in the trustee,
or to order it to be transferred to the trustee or sold for her
benefit.
- Bucknall v Wilson [2021]
EWHC 2149 (Ch): change of position is not a defence to an action
under section 339 (transactions at an undervalue) and/or section
340 (preferences) of the Insolvency Act 1986.
- Re Ipagoo LLP (In
Administration) [2021] EWHC 2163 (Ch):
Ipagoo LLP was authorised by the Financial Conduct Authority as an
Electronic Money Institution ("EMI"). As such it was not
entitled to take deposits, and it was required to safeguard
"relevant funds", defined in the Electronic
Money Regulations 2011 ("the Regulations") as
sums paid by Electronic Money Holders to the EMI in exchange for
e-money. The Court found that the Regulations do not create a
statutory trust in favour of electronic money holders in the event
of an EMI's insolvency. However, regulation 24 of the
Regulations gives electronic money holders priority over the
"relevant funds". Where the "relevant
funds" have not been safeguarded as they should have
been, a sum equal to the deficit should be added to them and the
"relevant funds" distributed in priority to other
distributions.
- Re Rufus [2021] EWHC 2124
(Ch): trustees in bankruptcy could rely on equitable waiver where
they had not served insolvency applications in accordance with the
Insolvency Rules but the respondent had taken significant steps in
the proceedings, including serving pleadings, before applying to
strike out the applications for failure to comply with the
Rules.
- Re A Company [2021] EWHC 2289 (Ch): the Court considered the burden of proof arising on the restrictions on presenting winding up petitions under the Corporate Insolvency and Governance Act 2020 and the two-stage "coronavirus test" identified by ICC Judge Barber in Re A Company (Application to Restrain Advertisement of a Winding Up Petition) [2020] EWHC 1551 (Ch).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.