A plaintiff recently applied for a bankrupt's committal to prison for contempt of court, providing certification that the bankrupt's conduct had breached the Insolvency Act 1986 without reasonable excuse. The court's decision appears to be the first to clarify the procedure for applying for a committal order on the basis of breaches of the Insolvency Act and provides helpful guidance to practitioners on this issue.
The Court of Appeal recently held that there is a complete statutory code for interest recovery on proved debts in administrations and liquidations. Further, the court stated that statutory interest represents compensation for dividends paid after the administration, and does not depend on any right to interest under the underlying claim.
A recent Court of Appeal case has clarified that where the underlying liability on which a bankruptcy order is made is subsequently set aside, the correct remedy is rescission under Section 375(1) of the Insolvency Act. Further, annulment under Section 282(1)(a) is the appropriate remedy when, on grounds existing at the time of making the bankruptcy order, the order ought not to have been made.
In between the presentation of a winding-up petition and the making of a winding-up order, a company entered into a settlement agreement with its founder. The judge concluded that the intended claims by the company's liquidators were not barred by the agreement. The judge also held that the release of contractual rights constituted a disposition, as did a promise not to sue. The provisions of the settlement agreement were therefore void.
The administrators of Lehman Brothers Europe Ltd recently brought an application for directions on whether to make a substantial distribution of surplus to the company's sole shareholder while the company was in administration and the administrators' role in that distribution. To navigate around the Insolvency Act, the administrators devised a nifty strategy whereby the distribution would be made using the residual powers still vested in the directors and shareholders of the company pursuant to the Companies Act.
A court recently confirmed that legal professional privilege does not automatically vest in the trustee in bankruptcy. Legal professional privilege is a fundamental human right such that express statutory powers would be necessary to deprive the bankrupt of that right. Therefore, the bankrupt would need to waive privilege or consent to the use of privileged documents.