‘The appeal to the Supreme Court in Sevilleja v Marex Financial Ltd [2020] UKSC 31 re-states the principle that a company’s shareholders cannot recover damages against a wrongdoer for loss which is “reflective” of a loss caused by the wrongdoer to the company itself.’
Hailsham Chambers, July 2020
Source: www.hailshamchambers.com
‘The Supreme Court’s decision in Sevilleja v. Marex Financial Ltd, 15 July 2020, fundamentally restates the doctrine of reflective loss in company law so that:
A claim by a company’s creditor against a third party will not be barred where it reflects loss suffered by the company, even if the creditor is also a shareholder; and
There is no longer an exception to the doctrine where the wrongdoer has brought about the company’s impecuniosity.’
4 New Square, 17th July 2020
Source: www.4newsquare.com
‘In the midst of the coronavirus pandemic Parliament has been, and continues to be, very active. This note provides a quick update in relation to the latest developments on four fronts: (1) forfeiture; (2) CRAR; (3) insolvency; (4) planning.’
Falcon Chambers, 29th June 2020
Source: www.falcon-chambers.com
‘On 27 April 2020 the British Institute of International and Comparative Law (BIICL) published Breathing Space – a Concept Note on the effect of the pandemic on commercial contracts. The central thesis is that to mitigate the damaging effects of COVID-19 on the global economy, private law should encourage compromise and mediation rather than a zero-sum rush to terminate contracts and then to litigation and arbitration.
3 Hare Court, 29th June 2020
Source: www.3harecourt.com
‘In this case comment, Adrian Bell, Nigel Lewis, Steven Bell and Shona Frame, all partners within the CMS Infrastructure, Construction and Energy Disputes Group, comment on the decision handed down in June 2020 in the matter of Bresco Electrical Services Ltd (in liquidation) v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25.’
UKSC Blog, 1st July 2020
Source: ukscblog.com
‘Adjudication is a quick and comparatively cheap method of dispute resolution and for those reasons is attractive to insolvent companies seeking to recover debts. However, a respondent was likely to be able to restrain the insolvent company from referring the matter to adjudication on the basis that it would be futile to do so, since any positive decision was unlikely to be enforced as a result of the very fact of the company’s insolvency. Therefore, any award lacked practical utility. Following the decision of the Supreme Court in Bresco v Lonsdale, that is no longer the case.’
Hardwicke Chambers, 17th June 2020
Source: hardwicke.co.uk
‘The judgment of Mr Justice Lewis in Hughes and others v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin), handed down on 22 June 2020, is of considerable importance for members of defined benefit schemes of insolvent employers. Thomas Seymour along with a counsel team from Blackstone Chambers (Tom de la Mare QC and Iain Steele), instructed by Farrers, acted for the British Airline Pilots Association (BALPA) representing pilots who were members of the Monarch and BMI Schemes, who brought proceedings for judicial review along with the claimants of other schemes. The proceedings, brought against the Pension Protection Fund (“PPF”) with the Department of Work and Pensions (“DWP”) as an interested party, were heard at a five-day remote hearing in the Administrative Court in May.’
Wilberforce Chambers, 24th June 2020
Source: www.wilberforce.co.uk
‘The Supreme Court has given judgment in what is being hailed as a landmark case in the construction and insolvency spheres. The decision has not only eliminated any doubt that there is jurisdiction for an insolvent company to adjudicate against a respondent with a potential cross-claim, but it has also endorsed the use of adjudication as a helpful tool for liquidators.’
3 Hare Court, 22nd June 2020
Source: www.3harecourt.com
‘Lord Justice Coulson’s judgment included the proposition that an insolvent Company could only adjudicate a dispute with a creditor in circumstances of mutual debts in “exceptional circumstances”. Subsequent caselaw has explored the extent of these “exceptional circumstances”.’
3PB, 18th June 2020
Source: www.3pb.co.uk
‘Beyond the medical and physical toll that Covid-19 is taking on sufferers and their families, the economic crisis with lockdown is also expected to lead to a surge in corporate and individual insolvencies. Individuals in particular are likely to be unfamiliar with their options when facing insolvency and with the procedures that aim to balance the twin goals of granting individuals relief from their debt whilst fairly distributing the individual’s assets to creditors.’
Thomas More Chambers, 29th May 2020
Source: www.thomasmore.co.uk
‘In relation to the EFL, there have been dire warnings that in the absence of a substantially increased contribution from the Premier League, up to 60 clubs could go out of business.’
Littleton Chambers, 2nd June 2020
Source: littletonchambers.com
‘In Carillion v KPMG, the liquidators of this once substantial company sought pre-action disclosure from its former auditors. They intend to bring professional negligence proceedings for not detecting that the financial statements were unreliable. The Commercial Court refused the application. One might think that given auditors’ negligence claims in large part turn on professional judgment as to the audit procedures performed, the evidence obtained and the conclusions drawn, clear sight of the materials produced and relied on by the auditors would enable better focussed pleadings. Nonetheless the Commercial Court refused the application (which had admittedly spun into a substantial hearing with apparently more than £500,000 costs on each side). It pointed out that generally such applications were unlikely to succeed in Commercial Court cases and on the facts was not appropriate. The Judge seems to have been most impressed by the fact that Carillion had been able to articulate a detailed case in negligence already, rendering pre-action disclosure perhaps redundant and likely to be duplicated when it came to conventional disclosure.’
Hailsham Chambers, June 2020
Source: www.hailshamchambers.com
‘The COVID-19 pandemic has caused unprecedented disruption to the economy and to businesses, many of whom are now facing significant financial difficulty. The Government presented the Corporate Insolvency and Governance Bill to Parliament on 20 May 2020 (“the Bill”). The Bill includes several provisions designed to guard against a deluge of insolvencies during this period and, if enacted, will operate retrospectively.’
3 Hare Court, 2nd June 2020
Source: www.3harecourt.com
‘This summary gives a short overview of the Corporate Insolvency and Governance Bill, which was first read in the House of Commons
on 20 May 2020 and is intended to proceed to the House of Lords following its final stages in the House of Commons on 3 June 2020. This Bill represents the biggest reforms to the UK’s insolvency framework since the Enterprise Act in 2002. The aim is to allow more tools to rescue struggling companies as a going concern and help more businesses weather the COVID-19 storm and avoid entering an insolvency process.’
Radcliffe Chambers, 26th May 2020
Source: radcliffechambers.com
‘With many businesses large and small struggling to survive or collapsing into administration or liquidation landlords are particularly vulnerable to rent arrears and the difficulty of finding a suitable tenant to replace the existing. The following is an overview of what steps a landlord can take in this uncertain world.’
Pump Court Chambers, 26th May 2020
Source: www.pumpcourtchambers.com
‘Last week saw the first reading in the House of Commons of the Corporate Insolvency and Governance Bill [“CIGB”], which is the Government’s attempt to mitigate the impact of COVID-19 on businesses which should otherwise have been viable. From a parliamentary point of view, it is still at an early stage but, given the importance and urgency of this piece of legislation, it is worth considering some of the key points which arise from a high-level overview, so that you and your clients can try to plan accordingly. Not all of the provisions will survive into the finalised Act, but early Bills are often a good indicator of the overall aims of the legislation. This article does not deal with each and every point to arise from the CIGB, which currently runs to 238 pages including 14 Schedules, but signposts the crucial areas.’
St Philips Barristers, 25th May 2020
Source: st-philips.com
‘The economic consequences of the COVID-19 pandemic are putting incredible pressures on companies of all kinds and sizes. The UK Government has been at pains to signal its support for business during the COVID-19 pandemic, most notably the furloughing scheme and company loans announced by the Chancellor, and further announcements by the Business Secretary seeking to reduce the burden on businesses and keep companies running.’
3 Hare Court, 11th May 2020
Source: www.3harecourt.com
‘In a judgment handed down on 6th May 2020 in Re Debenhams Retail Ltd (in administration) [2020] EWCA Civ 600, the Court of Appeal provided confirmation on the implications for office holders and insolvent estates of using the Government’s Coronavirus Job Retention Scheme in administrations, following the previous first instance decisions on the issue in Re Carluccio’s Ltd [2020] EWHC 886 (Ch) and Re Debenhams Retail Ltd [2020] EWHC 921 (Ch). Matthew Weaver considers the judgment and its implications in this briefing.’
Radcliffe Chambers, 13th May 2020
Source: radcliffechambers.com
‘A judge has rejected a recusal application on the grounds of apparent bias, based on him being in the same class at school as the director of a defendant company more than 45 years ago.’
Litigation Futures, 13th May 2020
Source: www.litigationfutures.com
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