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A summary checklist and timeline for bringing misfeasance, fraudulent trading and wrongful trading claims under sections 212, 213, 246ZA, 214 and 246ZB of the Insolvency Act 1986 Checklist This Checklist is in relation to claims under sections 212–214, 246ZA and 246ZB of the Insolvency Act 1986 (IA 1986), being commenced by an insolvency office-holder. For further reading on claims under IA 1986, ss 212–214, 246ZA and 246ZB generally, see Practice Notes: • Misfeasance claims under section 212 of the Insolvency Act 1986 • Fraudulent trading claims under sections 213 and 246ZA of the Insolvency Act 1986 • Wrongful trading claims under sections 214 and 246ZB of the Insolvency Act 1986 Step/action Time (days) Section/rule 1. Investigate the events and circumstances leading to the insolvency of the company and the matters giving rise to the claim(s) against the respondent(s). This would include obtaining the company's books and records, interviewing directors, former directors and any persons with information concerning the promotion, formation, business, dealings, affairs or property of the company.It...
Intra-group reorganisation (by share sale)─checklist This Checklist summarises the key steps involved in an intra-group reorganisation by sale of shares of an English-incorporated company to another English-incorporated company and highlights certain issues which may arise for the company as a result of such process. This Checklist does not claim to be exhaustive, as the issues that arise in connection with an intra-group reorgnisation by share sale and the steps involved in the process will vary from one transaction to the next. For a summary of the key issues involved in an intra-group reorganisation by way of an asset sale, please refer to: Intra-group reorganisation (by asset sale)─checklist. Consideration of a corporate reorganisation may also require specialist assistance in property, employment, pensions, intellectual property, information technology, finance and tax matters. Please consider obtaining further guidance on these areas. For further information, see Practice Notes: IP and IT aspects of intra-group reorganisations and Intra-group reorganisations and pensions. Issue Guidance Determining the reorganisation structure and other preliminary considerations (general) Asset purchase or...
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The Pension Protection Fund—eligibility and entry Requirements for PPF entry The requirements for a scheme to enter the PPF are: • the scheme must be an eligible scheme—see: What schemes are eligible? below • either: ◦ a qualifying insolvency event must occur in relation to a scheme employer—see: What is a qualifying insolvency event? below, or ◦ the employer is unlikely to continue as a going concern and it meets the conditions in SI 2005/590, reg 7—see: Alternative route to PPF entry, below • the insolvency practitioner in relation to the employer must confirm that a scheme rescue is not possible—see: Duty of insolvency practitioner to issue notices confirming status of scheme (section 122 notices), and • the assets of the scheme must be less than the 'protected liabilities' (broadly, the benefits that would be payable to members by the PPF)—see: Protected liabilities, below The statutory provisions regarding the eligibility of schemes for entry into the PPF are contained in: • sections 120–168 of the Pensions Act...
Appeals in insolvency proceedings Appeals—the general position in litigation Appeals in litigation are governed by CPR 52 and its practice directions, being CPR PD 52A, CPR PD 52B, CPR PD 52C, CPR PD 52D and CPR PD 52E. The applicable practice directions, broadly speaking, deal with the following: • CPR PD 52A contains general provisions relating to appeals • CPR PD 52B contains provisions for appeals in the County Court and High Court • CPR PD 52C contains provisions for appeals in the Court of Appeal • CPR PD 52D contains provisions relating to statutory appeals and appeals subject to special provision • CPR PD 52E contains provisions relating to appeals by way of case stated Grounds for appealing An appeal will only be allowed if the appeal court is satisfied that the decision of the lower court was: • wrong, or • unjust because of a serious procedural or other irregularity in the proceedings in the lower court Appeals will generally be limited to a...
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Witness statement in support of an application by an insolvency office-holder under sections 234, 235, 236, 365 and 366 of the Insolvency Act 1986 to obtain property, information and/or documentation Applicant(s): [insert initials and surname]: [insert number of witness statement eg 1st] Exhibit: [insert exhibit description]: Date: [insert date of witness statement] CASE NO: [insert case number] [ IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES INSOLVENCY AND COMPANIES LIST (ChD) OR IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS IN [insert location] INSOLVENCY AND COMPANIES LIST (ChD) OR IN THE COUNTY COURT AT [insert location] ] [ IN THE MATTER OF [insert company’s name] OR IN THE MATTER OF [insert bankrupt’s name] IN BANKRUPTCY ] AND IN THE MATTER OF THE INSOLVENCY ACT 1986 BETWEEN [Insert name(s) of the OFFICE-HOLDER(s)]        Applicant(s) AND [Insert name(s) of the respondent(s)]        Respondent(s) [INSERT NUMBER] Witness statement of [Insert name OF OFFICE-HOLDER] I, [insert name of the office-holder]...
Application notice Insolvency Act 1986 s 216 APPLICATION NOTICE Form IAA Rule 1.35 of the Insolvency (England and Wales) Rules 2016 Court Reference No. [insert number] [IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES OR IN [insert location]] INSOLVENCY AND COMPANIES LIST (ChD) OR IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION [insert location] DISTRICT REGISTRY OR IN THE COUNTY COURT AT [insert location]] IN THE MATTER OF [insert company name] AND IN THE MATTER OF S 216 OF THE INSOLVENCY ACT 1986 Between [insert name]        Applicant and [insert name]        Respondent 1 This application is made under Section 216 of the Insolvency Act 1986. 2 The Applicant is [insert name and address of the applicant], a former director of [insert full name of company subject to liquidation] Ltd. 3 The Respondent is [name and address of the respondent]. 4 The application concerns [identify the company that is the subject of the proceedings]. 5 This application is made to the [Judge OR...
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Where a company seeks to appoint an administrator using the out-of-court procedure in paragraph 22(1) of Schedule B1 to the Insolvency Act 1986, what formalities are required to effect this decision of the company? Is it an ordinary resolution of shareholders and if so, what is the statutory authority for this? Paragraph 22(1) of Schedule B1 to the Insolvency Act 1986 (IA 1986) simply states that: ‘a company may appoint an administrator’.The formalities required for an administrator’s appointment are set out in the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, rr 3.23–3.26. When the appointment is to be made by a company, a company resolution to appoint an administrator must be filed at court with the Form IR 2016, LN r3.24 AM (Notice of appointment of an administrator by a company or the directors of a company (where notice of intention to appoint has been given) (formerly Form 2.9B)) or Form IR 2016 LN r3.25 AM (Notice of appointment of an administrator by a...
If there is a fixed charge over agricultural equipment but the instrument contains wording to the effect that the schedule may be amended from time to time, then upon an amendment is there a new charge created or does the original charge continue or may the charge actually be a floating charge? Depending on the type of amendment being made, amending a charge carries several risks. In particular, a liquidator or administrator could argue that new security has been created, which may result in the security being set aside. As a result, it is often seen as safer to put a new security document in place and leave the existing security un-amended. In addition, as you have rightly indicated, changing the terms of a fixed charge could risk it being re-characterised as a floating charge. Please see our Practice Note: Fixed and floating charges for more information. In the event an existing charge is extended to new or replacement facilities, then it is likely that a...
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This week's edition of Family weekly highlights includes details of the latest Online Procedure Rule Committee meeting minutes and the evidence given at the annual session of the Lords Constitution Committee. Recent judgments on the duty to accommodate a child, foreign adoption and child maintenance are considered. A new flowchart on the threshold criteria in public children proceedings is also set out.
This week's edition of Restructuring and Insolvency weekly highlights includes: the publication by the Department for Business and Trade of its second annual progress report on the implementation of the Economic Crime and Corporate Transparency Act 2023, the endorsement by the Council of the EU of the Directive aimed at harmonising key aspects of insolvency law across member states, analysis of a decision that parallel Australian proceedings did not justify a stay of disqualification proceedings in this jurisdiction (Secretary of State for Business and Trade v Greensill), plus a round-up of other news and cases for restructuring and insolvency professionals.
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