Tamsin Reader

Tamsin qualified as a solicitor in 2006, specialising in property litigation. She has significant experience in dealing with lease extensions, boundary disputes, Landlord and Tenant matters – both residential and commercial and other property disputes, including adverse possession, easements and all cases referred to the First Tier Property Tribunal.

With a background in acting for Local Authorities, Tamsin also has the experience to act in relation to Regulatory and planning matters, including Trading Standards and Health and Safety At Work matters.

She is also qualified as a non-practising barrister.

More articles from this author

Lease Extensions

Author: Tamsin Reader

Since 1993, Leaseholders have been able to claim an extended Lease from their Landlord(s). With flats with less than 80 years it may be difficult to sell or secure a mortgage on. Extending your Lease either by agreement, or otherwise, overcomes this problem and makes your property more desirable and in most cases a more valuable asset.

Landlord & Tenant - No Cash Back for M&S

Author: Tamsin Reader

In the case of Marks & Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another [2014], the Court of Appeal has overturned a first instance decision. The tenant, M&S, had exercised a break clause ending its lease early.

More articles from this sector

Endersby and Coote v Astrosoccer 4 U Ltd

Author: Nigel Cook

The case arose because of a purported appointment of administrators following the filing of a notice of intention (NOI) by the directors (which had to be given to the floating chargeholder) but immediately after a winding up petition had been filed by the judgement creditors who also opposed this application. This appointment was invalid because of para 25 of Schedule B1.

SAW (SW) 2010 Limited –v- Wilson & Another

Author: Nigel Cook

In this case, the Court of Appeal considered a challenge to an Administrator’s appointment under paragraph 14 of Schedule B1 made by a floating charge holder.

Two Pints - A Contract or Wishful Thinking?

Author: Chris Millar

The High Court has held that a discussion between business people in a pub did not create an oral contract as there was no intention to create a legal relationship.

Some Questions to Share

Author: Chris Millar

1. Does a conflict of interest arise where a solicitor acts for both the Petitioning Creditor and the Liquidator of a company?

Protection of IT Supplies

Author: Chris Millar

IT supplies are hugely important for the continuation of many businesses and section 233A of the Insolvency Act 1986 extends the list of essential suppliers to include IT supplies “for the purpose of enabling or facilitating anything to be done by electronic means”. Such suppliers will be unable to terminate supplies or demand existing pre-insolvency debts are paid, as a condition of continuing supplies.

The Alternatives to Taking a Dispute to Trial

Author: Angus Storar

Recently, a Ministry of Justice poll of Court users for 2014/2015, showed that 70% of all Claimants had attempted to resolve their dispute directly with their opponents and of those Claimants, 68% would have rather avoided making a Court claim and the expense of litigation..

Court Fees - The New Landscape

Author: Martin Steer

The issue fees for all civil claims above £10,000 are now calculated at 5% of the value of the claim subject to a maximum Court fee of £10,000 and Claims of £200,000 or more will cost £10,000 to issue.

Increase in Bankruptcy Level

Author: Laura Marchington

Historically, the service of a Statutory Demand has been the precursor to commencing insolvency proceedings, whether it was bankruptcy proceedings against an individual or a Winding up Petition against a corporate director.

Civil Court Fees Increase

Author: Floris Shoebridge

The Government has recently announced that court fees for the issuing of civil claims are to increase dramatically from April 2015 attracting criticism from Senior Judges, the Law Society, and other members of the legal profession.

Landlord & Tenant - No Cash Back for M&S

Author: Tamsin Reader

In the case of Marks & Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another [2014], the Court of Appeal has overturned a first instance decision. The tenant, M&S, had exercised a break clause ending its lease early.

Commercial Rent Arrears Recovery (CRAR)

Author: Laura Marchington

Commercial Rent Arrears Recovery (CRAR) is a method of enforcement to recover rent arrears relating to commercial properties. CRAR came into force on 6th April 2014 and is governed by the Tribunals Courts and Enforcement Act 2007 (TCEA) and the Taking Control of Goods Regulations 2013 (TCGR). CRAR must now be used for commercial property and the common law rights of distress is abolished.

Insolvency Rules 1986 – All change

Author: Chris Millar

The Insolvency Rules 1986 are likely to be replaced wholesale by new Rules later this year which are likely to provide, inter alia:-

KY Homes Bradford Limited v Patel

Author: Chris Millar

Section 1140 of the Companies Act 2006 permits a document to be served on a Company Director by leaving it at or by sending it by post to the person's registered address i.e. the address in the Register of Directors held at Companies House.

Madoff Securities International Limited (in Liquidation) v Steven Raven & Ors

Author: Chris Millar

Another set-back for Madoff recoveries.

Yang v The Official Receiver

Author: Chris Millar

If a liability order on which a Bankruptcy Petition was grounded, is set aside on appeal, this change in circumstance provides a ground for rescinding the Bankruptcy Order (under Section 375(1) IA 1986.)

HMRC v O’Rorke

This case related to the liability of a director for unpaid National Insurance Contributions (NIC) under Section 121C of the Social Security Administration Act 1992.

Arif v Anwar

Author: Chris Millar

The wife applied to annul the husband’s Bankruptcy Order.

Prest v Petrodel Resources Limited

Author: Chris Millar

The Supreme Court decided that assets were held by a company as bare trustee for the husband, and therefore could be brought into account, but also held that if a Court can find no other way to get at the assets in question where an individual seeks to evade a legal obligation by interposing a company, then the Court may be prepared to pierce the corporate veil.

Cross Border Assistance

Those that attended the IP seminar earlier this year will have hopefully reflected upon the wider aspects of the “means” available to seek and obtain recognition and reciprocity of insolvency proceedings e.g. UNCITRAL, EC Regulation, common law and/or Section 426.

Recovery of Trustee's Costs

Recovery by a Trustee of his costs can often be problematic. This may be particularly so where the bankrupt has managed to obtain an annulment.

Rubin and New Cap

In the final analysis, it is considered that these cases should not be a fundamental problem for IP’s as the issues highlighted can be avoided. Indeed, the recent case of “Bilta (UK) Limited v Nazir” [2012] shows this issue in stark contrast where the High Court was willing to apply the scope of section 213 in an extra-territorial context.

What is, however, probably more relevant in the international context, is the proposed amendments to the Regulation. Amongst these are:-

To include “hybrid” (debtor in possession e.g. CVA) and “pre-Insolvency” schemes (restructuring e.g. Schemes of Arrangement) within the scope of the Regulation.
Foreign Creditors are given the right to challenge a decision regarding a company’s COMI.
Secondary proceedings will no longer have to be winding up proceedings, and the Court will be obliged to consider the views of the office – holder in the main proceedings.
There will be a greater obligation on office-holders to consult and coordinate in cases involving the Insolvency of a group of companies in different jurisdictions.
There is to be an internet-based register available to the public regarding insolvencies in each EU Jurisdiction, probably via the European e-Justice Portal (ec.europa.eu.civiljustice)
On 15th April 2013 the UK announced its intention to opt-in to the proposed amendments albeit that it is understood that Schemes of Arrangement will be excluded from the amendments to the Regulation.

For further information, please contact Chris Millar either by telephone on 01306 502225 or by email c.millar@downslaw.co.uk

Intellectual Property Update

Software Licences - who game is it?

Arbitration and Mediation

Whilst Court proceedings are often contemplated and commenced in order to resolve civil disputes between private individuals or companies..,

Foreign Judgments : Attachment of Assets in England

What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)?  Freezing property in place?  Placing it in the custody of a third party, such as a court official, sheriff or marshall?

Endersby and Coote v Astrosoccer 4 U Ltd

Author: Nigel Cook

The case arose because of a purported appointment of administrators following the filing of a notice of intention (NOI) by the directors (which had to be given to the floating chargeholder) but immediately after a winding up petition had been filed by the judgement creditors who also opposed this application. This appointment was invalid because of para 25 of Schedule B1.

SAW (SW) 2010 Limited –v- Wilson & Another

Author: Nigel Cook

In this case, the Court of Appeal considered a challenge to an Administrator’s appointment under paragraph 14 of Schedule B1 made by a floating charge holder.

Two Pints - A Contract or Wishful Thinking?

Author: Chris Millar

The High Court has held that a discussion between business people in a pub did not create an oral contract as there was no intention to create a legal relationship.

Thomas And Another v Frogmore Real Estate Partners GP1 Ltd

Three Jersey incorporated companies owned shopping centres in England and each had granted qualifying floating charges to its main lender, Nationwide Building Society (NBS).  NBS entered into arrangements with the respondents to share the funding risk with the respondents and to sell the loan. 

Some Questions to Share

Author: Chris Millar

1. Does a conflict of interest arise where a solicitor acts for both the Petitioning Creditor and the Liquidator of a company?

Protection of IT Supplies

Author: Chris Millar

IT supplies are hugely important for the continuation of many businesses and section 233A of the Insolvency Act 1986 extends the list of essential suppliers to include IT supplies “for the purpose of enabling or facilitating anything to be done by electronic means”. Such suppliers will be unable to terminate supplies or demand existing pre-insolvency debts are paid, as a condition of continuing supplies.

The Alternatives to Taking a Dispute to Trial

Author: Angus Storar

Recently, a Ministry of Justice poll of Court users for 2014/2015, showed that 70% of all Claimants had attempted to resolve their dispute directly with their opponents and of those Claimants, 68% would have rather avoided making a Court claim and the expense of litigation..

Court Fees - The New Landscape

Author: Martin Steer

The issue fees for all civil claims above £10,000 are now calculated at 5% of the value of the claim subject to a maximum Court fee of £10,000 and Claims of £200,000 or more will cost £10,000 to issue.

Increase in Bankruptcy Level

Author: Laura Marchington

Historically, the service of a Statutory Demand has been the precursor to commencing insolvency proceedings, whether it was bankruptcy proceedings against an individual or a Winding up Petition against a corporate director.

Civil Court Fees Increase

Author: Floris Shoebridge

The Government has recently announced that court fees for the issuing of civil claims are to increase dramatically from April 2015 attracting criticism from Senior Judges, the Law Society, and other members of the legal profession.

Landlord & Tenant - No Cash Back for M&S

Author: Tamsin Reader

In the case of Marks & Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another [2014], the Court of Appeal has overturned a first instance decision. The tenant, M&S, had exercised a break clause ending its lease early.

Commercial Rent Arrears Recovery (CRAR)

Author: Laura Marchington

Commercial Rent Arrears Recovery (CRAR) is a method of enforcement to recover rent arrears relating to commercial properties. CRAR came into force on 6th April 2014 and is governed by the Tribunals Courts and Enforcement Act 2007 (TCEA) and the Taking Control of Goods Regulations 2013 (TCGR). CRAR must now be used for commercial property and the common law rights of distress is abolished.

Insolvency Rules 1986 – All change

Author: Chris Millar

The Insolvency Rules 1986 are likely to be replaced wholesale by new Rules later this year which are likely to provide, inter alia:-

KY Homes Bradford Limited v Patel

Author: Chris Millar

Section 1140 of the Companies Act 2006 permits a document to be served on a Company Director by leaving it at or by sending it by post to the person's registered address i.e. the address in the Register of Directors held at Companies House.

Madoff Securities International Limited (in Liquidation) v Steven Raven & Ors

Author: Chris Millar

Another set-back for Madoff recoveries.

Yang v The Official Receiver

Author: Chris Millar

If a liability order on which a Bankruptcy Petition was grounded, is set aside on appeal, this change in circumstance provides a ground for rescinding the Bankruptcy Order (under Section 375(1) IA 1986.)

HMRC v O’Rorke

This case related to the liability of a director for unpaid National Insurance Contributions (NIC) under Section 121C of the Social Security Administration Act 1992.

Arif v Anwar

Author: Chris Millar

The wife applied to annul the husband’s Bankruptcy Order.

Prest v Petrodel Resources Limited

Author: Chris Millar

The Supreme Court decided that assets were held by a company as bare trustee for the husband, and therefore could be brought into account, but also held that if a Court can find no other way to get at the assets in question where an individual seeks to evade a legal obligation by interposing a company, then the Court may be prepared to pierce the corporate veil.

Cross Border Assistance

Those that attended the IP seminar earlier this year will have hopefully reflected upon the wider aspects of the “means” available to seek and obtain recognition and reciprocity of insolvency proceedings e.g. UNCITRAL, EC Regulation, common law and/or Section 426.

Recovery of Trustee's Costs

Recovery by a Trustee of his costs can often be problematic. This may be particularly so where the bankrupt has managed to obtain an annulment.

Rubin and New Cap

In the final analysis, it is considered that these cases should not be a fundamental problem for IP’s as the issues highlighted can be avoided. Indeed, the recent case of “Bilta (UK) Limited v Nazir” [2012] shows this issue in stark contrast where the High Court was willing to apply the scope of section 213 in an extra-territorial context.

What is, however, probably more relevant in the international context, is the proposed amendments to the Regulation. Amongst these are:-

To include “hybrid” (debtor in possession e.g. CVA) and “pre-Insolvency” schemes (restructuring e.g. Schemes of Arrangement) within the scope of the Regulation.
Foreign Creditors are given the right to challenge a decision regarding a company’s COMI.
Secondary proceedings will no longer have to be winding up proceedings, and the Court will be obliged to consider the views of the office – holder in the main proceedings.
There will be a greater obligation on office-holders to consult and coordinate in cases involving the Insolvency of a group of companies in different jurisdictions.
There is to be an internet-based register available to the public regarding insolvencies in each EU Jurisdiction, probably via the European e-Justice Portal (ec.europa.eu.civiljustice)
On 15th April 2013 the UK announced its intention to opt-in to the proposed amendments albeit that it is understood that Schemes of Arrangement will be excluded from the amendments to the Regulation.

For further information, please contact Chris Millar either by telephone on 01306 502225 or by email c.millar@downslaw.co.uk

Intellectual Property Update

Software Licences - who game is it?

Arbitration and Mediation

Whilst Court proceedings are often contemplated and commenced in order to resolve civil disputes between private individuals or companies..,

Foreign Judgments : Attachment of Assets in England

What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)?  Freezing property in place?  Placing it in the custody of a third party, such as a court official, sheriff or marshall?

Angel Group Limited and Others

The Angel Group consisted of eight companies, all of which had been placed into administration by a mixture of floating chargeholder’s appointment, director’s appointment and Court Order.

The New Insolvency Rules 2017

The new Insolency Rules will come into force on 6th April 2017.

Timing for Filing the Notice of Conversion from Administration to CVL

Author: Chris Millar

Progress reports are now dealt with in Part 18 of the IR 2016.

How do I calculate 5 business days under IR 2006, for the purpose of appointing an administrator?

Where the directors/company give notice to appoint an administrator, the notice must include a Statutory Declaration. That Statutory Declaration must be made not more than 5 business days before the notice of appointment is filed with the Court.

JCAM Commercial Real Estate Property XV Limited v Davis Haulage Limited

Author: Nigel Cook

In response to a threat by its Landlord to exercise its right of distress over the company’s assets, the company’s sole director filed a Notice of Intention to appoint an administrator and served it on the qualifying floating charge holder thus creating the interim moratorium under paragraph 43. Successive Notices of Intention followed and upon the filing of the fourth Notice the Landlord applied for an order to remove the last Notice on the grounds that it was an abuse of process. In fact, the company was proposing a company voluntary arrangement otherwise than through an administration.

Taylor v Von Dutch Marine Holding Limited

Author: Nigel Cook

The Company had granted to a bank a debenture containing fixed and floating charges i.e. qualifying floating charges over its assets. An unsecured creditor had obtained a Freezing Order preventing the company from disposing of or dealing with those assets covered by the debenture. The Debenture included express power to appoint a Receiver to sell the charged assets and also to act as agent of the Chargor company. The Bank applied to the Court for an Order to vary the Freezing Order so as to allow it to appoint a Receiver.

Thomas And Another v Frogmore Real Estate Partners GP1 Ltd

Three Jersey incorporated companies owned shopping centres in England and each had granted qualifying floating charges to its main lender, Nationwide Building Society (NBS).  NBS entered into arrangements with the respondents to share the funding risk with the respondents and to sell the loan. 

Debt Collection - New Pre-Action Protocol

Author: Albina Khad

Is your company’s balance sheet affected by aging debt and you are looking to recover it from your debtor? If so, prior to commencing court proceedings, you will now be expected to comply with the new Pre-Action Protocol for Debt Claims (the “Protocol”), which comes into force on 1 October 2017. It can be located on the Ministry of Justice website and will apply to a business (including sole traders and public bodies) (the “Creditor”) claiming payment of a debt from an individual (including a sole trader) (the “Debtor”). The Protocol does not apply to “business to business” debts unless the Debtor is a sole trader. Failure to follow the Protocol will put you at risk of costs sanctions being imposed against you by the court. It’s aim is to encourage communication and resolution without the need to issue proceedings.

Elgin Legal Limited [2016]

Author: Nigel Cook

The company had carried legal aid work regulated by the Solicitors Regulation Authority. The sole director placed it into administration (avoiding liquidation) so that its files could be reviewed and bills sent to the Legal Aid Agency.

Newton Coaches V Secretary of State for Business Energy and Industrial Strategy [2016]

Author: Nigel Cook

The applicants had been involved as partners in a partnership business which had been wound up under the Insolvent Partnerships Order 1994 which provides for procedures to be applied equivalent to the insolvency regimes for companies and LLP’s.

Brooks and Another V Armstrong and Another [2016]

Author: Nigel Cook

In this appeal from the Registrar the directors succeeded in overturning a compensation award in favour of the liquidators

Persons With Significant Control (PSC)

Author: Chris Millar

The DBIS has given guidance:-

Retrospective Validation Order

Author: Nigel, Cook

In the case of Express Electrical Distributors Limited v Beavis and Others, the Court of Appeal considered an application for a retrospective validation order, following the disposition of property after the issue of a winding up petition.

Longmeade Ltd

Author: Nigel Cook

Longmeade was part of the UK Lehman Brothers group. It went into compulsory liquidation in 2010 and the Official Receiver (OR) was appointed liquidator. The company had the opportunity to participate in distributions from US and Canadian insolvency processes but these were irretrievably lost as a result of inaction by the OR. Eventually new liquidators were appointed in place of the OR and they obtained legal advice that the losses to the company could be recovered by bringing a negligence claim against the Government ‘s BIS Department. Funding was available both for their costs and also against an adverse costs order.

Fieldfisher LLP v Pennyfeathers Limited

Author: Nigel Cook

This case involved an application by the plaintiff law firm for an administration order against its former client in respect of fees under a Conditional Fee Agreement (CFA). The CFA contained provisions for arbitration in event of dispute and it seems that the client challenged at least some of fees claimed.

Bankruptcy - Ulterior Motives

Author: Chris Millar

A debtor resisted a Petition against him upon the basis that the petitioner had an ulterior motive in seeking to make the debtor bankrupt, namely to obtain the debtor’s shares in a Spanish company.

Assignments of Claims or Judgment Debts

Author: Chris Millar

A judgment debt can be assigned if it is in writing, unconditional, doesn’t purport to be by way of charge only, and relates to the whole of the debt. Notice of the assignment must be given to the judgment debtor. For enforcement of the Judgment, an Application will have to be made to the Court for the assignor to replace the assignee as judgment creditor.

Pension Rights Protected in Bankruptcy

Author: Chris Millar

In the recent case of Horton v Henry, the Court of Appeal considered whether a bankrupt’s un-exercised right to draw down his personal pension should be included in his income assessment, and therefore payable to his trustee under an IPO within Section 310(7) of the Insolvency Act 1986.

Castlebridge Plant Ltd (In Administration)

Author: Nigel Cook

The Scottish Court rejected an application by administrators for an Order allowing them to avoid the need to set aside the prescribed part of the floating charge realisations.

Five Star Properties Limited

Author: Nigel Cook

The company Fivestar had been placed into administration and owned a freehold property which had been charged to a secured lender. Following the administration the company was dissolved rather than being placed into administration.

Armstrong Brands Limited (In Administration)

Author: Nigel Cook

Armstrong Brands Limited entered into a loan agreement to be supported by a debenture which, if properly executed, would be a “qualifying floating charge”. Both the loan agreement and debenture were signed by the then sole Director and the Company Secretary but left undated and undelivered for some months. By the time the debenture was actually delivered the director had resigned and been replaced.

Green -v- Gigi Brooks Limited

This was an application for an administration order by a former director and alleged creditor of the company. The applicant had been excluded from the business by her fellow director. From the facts it appears that the company was a start-up and that its business plan did not anticipate it making a profit for some time.

New Rules Under SBEEA 2015

Author: Nigel Cook

There is a hotchpotch of provisions in these Acts containing amendments to the Insolvency Act 1986 and the Rules.

Some provisions have already into effect (as anticipated in our previous IP Alerter) and others have been brought in during October 2015.

Ex Turpi Causa Lives

Author: Chris Millar

Ex Turpi Causa (Non Oritur Actio) essentially means that no action should arise based upon an illegal act. This equitable principle has been developed by the Courts over many years, latterly by the House of Lords in Tinsley v Milligan (1994) and Stone & Rolls Limited v Moore Stephens (2009), when the Court struck out a claim against auditors for failing to discover the fraudulent activities of a director, upon the basis that the claimant company was attributed with the illegal activities of that director.

English Schemes of Arrangement

Author: Chris Millar

It remains the case that many foreign companies (particularly those with their COMI in the EU) wish to avail themselves of the English Schemes of Arrangement for compromising or re-structuring liabilities. The English Courts have in recent years accepted jurisdiction where they have considered that there is “sufficient connection” with the laws of England.

Validation Orders and Good Faith

Author: Nigel Cook

The case of Wilson and 375 Live Limited v SMC Properties Limited was an application for a Validation Order under Section 127 of the Insolvency Act 1986. It was heard by Mr Registrar Briggs. The case involved 375 Live Limited taking a bridging loan and granting a mortgage over freehold property to the lender as security. Under pressure from the lender the company sold the property unaware that prior to completion of the sale HMRC had presented a winding up petition. The purchaser applied to Court for a retrospective Validation Order which was opposed by the liquidator who claimed that the property had been sold at an undervalue and the transaction declared void.

Winding Up Petition Backdated

Author: Chris Millar

Phoenix Companies

Author: Chris Millar

(a) Can a creditor find out if a director has applied for permission to re-use a prohibited name?

Laverty v British Gas Trading Limited

Author: Nigel Cook

This case involved a claim by British Gas Trading Limited (BGT) against former administrators of Peacock Stores for gas and electricity supplies to vacant stores. BGT argued that these supplies should be an expense of the administration and thus have a priority.

Insolvency (Protection of Essential Suppliers) Order 2015

Author: Nigel Cook

This Order which will come into effect on 1st October 2015 is derived from the Insolvency Service Consultation and draft Order issued in July 2014 which we reported previously.

EC Regulation on Insolvency Proceedings

Author: Nigel Cook

Changes to some of the provisions of the EC Regulation on Insolvency Proceedings (ECRIP) will come into effect in 2017. The main changes relate to the assessment of the centre of main interests (COMI) both for corporate and individuals; broadening the scope of secondary proceedings; protection of local i.e. national creditors outside secondary proceedings; and coordination of cross border group insolvencies.

Validation Order

The High Court has dismissed an application for a validation order under Section 127(1) where the payment to be validated was in respect of solicitor’s fees that the insolvent company had incurred in attempting to compromise the petition debt, rather than in defending the winding-up petition.

EU Insolvency Regulation

The Insolvency Service announced that the UK has opted in to negotiations to amend Counsel Regulation (EC) 1346/2000 commonly known as the EU Insolvency Regulation.

Validation Order Refused

In RC Brewery Limited V HMRC [2013] EWHC1184(CH), the High Court has dismissed an application under Section 127 of the Insolvency Act 1986 for an Order validating the payment of solicitors fees incurred in acting for a company in seeking an injunction to restrain advertisement of a winding up petition.

New Security Registration Regime

On 6th April 2013 a new registration regime for security interests created by companies and LLPs registered in the UK came into force.

Tests for Insolvency - Eurosail

In BNY Corporate Trustee Services Limited V Eurosail-UK [2013] UKSC 28, the Supreme Court has clarified the meaning of the insolvency tests under Sections 123 (1)(e) and 123 (2) of the Insolvency Act 1986.

The Rescue Process and the Supply of Services

The Enterprise and Regulatory Reform Act 2013 provides the Government with powers to amend the existing provisions of the Insolvency Act 1986, Sections 233 and 372. These powers will ensure that companies and individuals involved in a rescue process do not forfeit the supply of essential goods or services or are forced to accept them on onerous terms.

Lifting the Moratorium

In the case of Gaardsoe v Optimal Wealth Management Limited [2012] EWHC 3266 the High Court considered if it had power to permit an action that was commenced in breach of the moratorium as the claimant did not have either Court sanction or the consent of the administrators when the action was commenced.

Doctrine of Marshalling

This is a little understood equitable principle but in appropriate circumstances it can be of great value to a lower-ranking secured creditor.

When do Landlords have priority rights in an administration?

For the past few years there has been much in the news about the use of administrations as the favoured route for saving businesses and jobs. 

Update on Pre-Packs

In an announcement which will be welcome by the insolvency profession DBIS has said that it does not intend to legislate to impose restrictions on the use of pre-pack sales in any insolvency procedure.

Out of court administration

The line of cases which began last year with Minmar (929) Limited Khalastchi ([2011] EWHC 1195 (CH)) when the High Court decided that an out-of-court appointment by directors was invalid because of the failure to give notice to the Company, i.e. its shareholders, has had three additions.

Bankruptcy Cases - Property

Some interesting recent cases and reminders:-

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Timing for Filing the Notice of Conversion from Administration to CVL

Author: Chris Millar

Progress reports are now dealt with in Part 18 of the IR 2016.

How do I calculate 5 business days under IR 2006, for the purpose of appointing an administrator?

Where the directors/company give notice to appoint an administrator, the notice must include a Statutory Declaration. That Statutory Declaration must be made not more than 5 business days before the notice of appointment is filed with the Court.

Bankruptcy

Author: Chris Millar

(a) The High Court has confirmed in the recent case of Mohammed Safier v Wendy Wardell [2017] EWHC 20 that third party funds should not be paid into the ISA, and therefore do not attract the Secretary of State’s administration fee.

An Administrator's Remuneration

Author: Chris Millar

In the first instance, the creditors committee fixes the basis of the administrator’s remuneration. If the creditors committee fails to do so, or there is no creditors committee, then the creditors, as a body, must be asked to fix the administrator’s remuneration. If the administrator has delivered a paragraph 52(1)(b) statement i.e. there will be nothing to distribute to unsecured creditors, then only the secured creditors and the preferential creditors need be asked.

JCAM Commercial Real Estate Property XV Limited v Davis Haulage Limited

Author: Nigel Cook

In response to a threat by its Landlord to exercise its right of distress over the company’s assets, the company’s sole director filed a Notice of Intention to appoint an administrator and served it on the qualifying floating charge holder thus creating the interim moratorium under paragraph 43. Successive Notices of Intention followed and upon the filing of the fourth Notice the Landlord applied for an order to remove the last Notice on the grounds that it was an abuse of process. In fact, the company was proposing a company voluntary arrangement otherwise than through an administration.

Taylor v Von Dutch Marine Holding Limited

Author: Nigel Cook

The Company had granted to a bank a debenture containing fixed and floating charges i.e. qualifying floating charges over its assets. An unsecured creditor had obtained a Freezing Order preventing the company from disposing of or dealing with those assets covered by the debenture. The Debenture included express power to appoint a Receiver to sell the charged assets and also to act as agent of the Chargor company. The Bank applied to the Court for an Order to vary the Freezing Order so as to allow it to appoint a Receiver.

Thomas And Another v Frogmore Real Estate Partners GP1 Ltd

Three Jersey incorporated companies owned shopping centres in England and each had granted qualifying floating charges to its main lender, Nationwide Building Society (NBS).  NBS entered into arrangements with the respondents to share the funding risk with the respondents and to sell the loan. 

Debt Collection - New Pre-Action Protocol

Author: Albina Khad

Is your company’s balance sheet affected by aging debt and you are looking to recover it from your debtor? If so, prior to commencing court proceedings, you will now be expected to comply with the new Pre-Action Protocol for Debt Claims (the “Protocol”), which comes into force on 1 October 2017. It can be located on the Ministry of Justice website and will apply to a business (including sole traders and public bodies) (the “Creditor”) claiming payment of a debt from an individual (including a sole trader) (the “Debtor”). The Protocol does not apply to “business to business” debts unless the Debtor is a sole trader. Failure to follow the Protocol will put you at risk of costs sanctions being imposed against you by the court. It’s aim is to encourage communication and resolution without the need to issue proceedings.

Consumer Rights Act 2015 : What You Need to Know

Co-Authors: Neil Pfister and Daniella Magennis

BACKGROUND

The Consumer Rights Act 2015 (the Act) came into force on 1 October 2015, marking the most significant overhaul to UK consumer law since the Unfair Contract Terms Act 1977. Prior to the Act most UK consumer legislation dated back 30 years - a time when online retailers were yet to exist and digital content was a far cry from the multimedia hypermarket that we have at our fingertips today. In addition, consumer law was overly complex and ambiguous with much overlap between the various pieces of relevant legislation. Indeed, inconsistencies emerged in some cases where UK consumer law was found to conflict with EU law.

Are Lawyers Different by Design?

Downs Solicitors LLP have recently been recruited onto the Design Business Association's Experts Register.  

Business Owners - How You Can Save Tax

Running a business in today’s world can be vastly time consuming,

Angel Group Limited and Others

The Angel Group consisted of eight companies, all of which had been placed into administration by a mixture of floating chargeholder’s appointment, director’s appointment and Court Order.

The New Insolvency Rules 2017

The new Insolency Rules will come into force on 6th April 2017.

GDPR Compliance Review - Are you ready?

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

Timing for Filing the Notice of Conversion from Administration to CVL

Author: Chris Millar

Progress reports are now dealt with in Part 18 of the IR 2016.

How do I calculate 5 business days under IR 2006, for the purpose of appointing an administrator?

Where the directors/company give notice to appoint an administrator, the notice must include a Statutory Declaration. That Statutory Declaration must be made not more than 5 business days before the notice of appointment is filed with the Court.

Bankruptcy

Author: Chris Millar

(a) The High Court has confirmed in the recent case of Mohammed Safier v Wendy Wardell [2017] EWHC 20 that third party funds should not be paid into the ISA, and therefore do not attract the Secretary of State’s administration fee.

An Administrator's Remuneration

Author: Chris Millar

In the first instance, the creditors committee fixes the basis of the administrator’s remuneration. If the creditors committee fails to do so, or there is no creditors committee, then the creditors, as a body, must be asked to fix the administrator’s remuneration. If the administrator has delivered a paragraph 52(1)(b) statement i.e. there will be nothing to distribute to unsecured creditors, then only the secured creditors and the preferential creditors need be asked.

JCAM Commercial Real Estate Property XV Limited v Davis Haulage Limited

Author: Nigel Cook

In response to a threat by its Landlord to exercise its right of distress over the company’s assets, the company’s sole director filed a Notice of Intention to appoint an administrator and served it on the qualifying floating charge holder thus creating the interim moratorium under paragraph 43. Successive Notices of Intention followed and upon the filing of the fourth Notice the Landlord applied for an order to remove the last Notice on the grounds that it was an abuse of process. In fact, the company was proposing a company voluntary arrangement otherwise than through an administration.

Taylor v Von Dutch Marine Holding Limited

Author: Nigel Cook

The Company had granted to a bank a debenture containing fixed and floating charges i.e. qualifying floating charges over its assets. An unsecured creditor had obtained a Freezing Order preventing the company from disposing of or dealing with those assets covered by the debenture. The Debenture included express power to appoint a Receiver to sell the charged assets and also to act as agent of the Chargor company. The Bank applied to the Court for an Order to vary the Freezing Order so as to allow it to appoint a Receiver.

Thomas And Another v Frogmore Real Estate Partners GP1 Ltd

Three Jersey incorporated companies owned shopping centres in England and each had granted qualifying floating charges to its main lender, Nationwide Building Society (NBS).  NBS entered into arrangements with the respondents to share the funding risk with the respondents and to sell the loan. 

Debt Collection - New Pre-Action Protocol

Author: Albina Khad

Is your company’s balance sheet affected by aging debt and you are looking to recover it from your debtor? If so, prior to commencing court proceedings, you will now be expected to comply with the new Pre-Action Protocol for Debt Claims (the “Protocol”), which comes into force on 1 October 2017. It can be located on the Ministry of Justice website and will apply to a business (including sole traders and public bodies) (the “Creditor”) claiming payment of a debt from an individual (including a sole trader) (the “Debtor”). The Protocol does not apply to “business to business” debts unless the Debtor is a sole trader. Failure to follow the Protocol will put you at risk of costs sanctions being imposed against you by the court. It’s aim is to encourage communication and resolution without the need to issue proceedings.

Elgin Legal Limited [2016]

Author: Nigel Cook

The company had carried legal aid work regulated by the Solicitors Regulation Authority. The sole director placed it into administration (avoiding liquidation) so that its files could be reviewed and bills sent to the Legal Aid Agency.

Newton Coaches V Secretary of State for Business Energy and Industrial Strategy [2016]

Author: Nigel Cook

The applicants had been involved as partners in a partnership business which had been wound up under the Insolvent Partnerships Order 1994 which provides for procedures to be applied equivalent to the insolvency regimes for companies and LLP’s.

Brooks and Another V Armstrong and Another [2016]

Author: Nigel Cook

In this appeal from the Registrar the directors succeeded in overturning a compensation award in favour of the liquidators

Persons With Significant Control (PSC)

Author: Chris Millar

The DBIS has given guidance:-

Retrospective Validation Order

Author: Nigel, Cook

In the case of Express Electrical Distributors Limited v Beavis and Others, the Court of Appeal considered an application for a retrospective validation order, following the disposition of property after the issue of a winding up petition.

Longmeade Ltd

Author: Nigel Cook

Longmeade was part of the UK Lehman Brothers group. It went into compulsory liquidation in 2010 and the Official Receiver (OR) was appointed liquidator. The company had the opportunity to participate in distributions from US and Canadian insolvency processes but these were irretrievably lost as a result of inaction by the OR. Eventually new liquidators were appointed in place of the OR and they obtained legal advice that the losses to the company could be recovered by bringing a negligence claim against the Government ‘s BIS Department. Funding was available both for their costs and also against an adverse costs order.

Fieldfisher LLP v Pennyfeathers Limited

Author: Nigel Cook

This case involved an application by the plaintiff law firm for an administration order against its former client in respect of fees under a Conditional Fee Agreement (CFA). The CFA contained provisions for arbitration in event of dispute and it seems that the client challenged at least some of fees claimed.

Pension Rights Protected in Bankruptcy

Author: Chris Millar

In the recent case of Horton v Henry, the Court of Appeal considered whether a bankrupt’s un-exercised right to draw down his personal pension should be included in his income assessment, and therefore payable to his trustee under an IPO within Section 310(7) of the Insolvency Act 1986.

Persons With Significant Control Register

Author: Neil Pfister

What is the PSC Register and why has it been introduced?

From April 2016, nearly all companies and LLPs in the UK will be required to keep a ‘PSC’ or 'persons with significant control' register to ensure that the individuals who are its ultimate beneficial owners and controllers are identified, and crucially that details of their holdings in these companies and LLPs are made public.

Consumer Rights Act 2015 : What You Need to Know

Co-Authors: Neil Pfister and Daniella Magennis

BACKGROUND

The Consumer Rights Act 2015 (the Act) came into force on 1 October 2015, marking the most significant overhaul to UK consumer law since the Unfair Contract Terms Act 1977. Prior to the Act most UK consumer legislation dated back 30 years - a time when online retailers were yet to exist and digital content was a far cry from the multimedia hypermarket that we have at our fingertips today. In addition, consumer law was overly complex and ambiguous with much overlap between the various pieces of relevant legislation. Indeed, inconsistencies emerged in some cases where UK consumer law was found to conflict with EU law.

Are Lawyers Different by Design?

Downs Solicitors LLP have recently been recruited onto the Design Business Association's Experts Register.  

Business Owners - How You Can Save Tax

Running a business in today’s world can be vastly time consuming,

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