Insolvency & Restructuring

In Enka Insaat v Banca Populaire Dell’Alto and Enka Insaat v Cassa DDI Risparmio DDI Bolzano [2009] EWHC 2410 (Comm) the applicant applied for summary judgment against two banks pursuant to performance guarantees that they had issued. The applicant had entered into a contract with a Russian owner for the design and construction of its […]

The anti-deprivation rule operates to prevent a person’s property being transferred and taken away from his creditors on bankruptcy or winding up. In Perpetual Trustee Co Limited and others v BNY Corporate Trustee Services Limited and others and Butters and others v BBC Worldwide and others [2009] EWCA Civ 1160 the Court of Appeal had […]

The early termination provisions in an International Swap Dealers Association (ISDA) master agreement were held not to be a penalty, which would have made them unenforceable. In BNP Paribas v Wockhardt [2009] EWHC 3116 (Comm) the defendants had defaulted under the terms of the master agreement. That allowed the bank to designate an early termination […]

The court has removed an administrator of a firm of solicitors who was closely involved in the negotiations for the pre-pack administration on the grounds that it was difficult for him to conduct an independent review in the face of a challenge by major creditors. In Clydesdale Financial Services v Smailes [2009] EWHC 1745 (Ch) […]

Few in the construction industry are having an easy time of it in the current recession, and sub-contractors may be having a worse time than most. Those with long memories, however, may at least be grateful that one of the scourges of the 1990s’ recession – “pay-when-paid” clauses – are almost never seen any more. […]

US receivers of a bankrupt trust engaged in a commercial scheme in the US and Canada sought recognition in the English court and also to enforce a US default judgment for US $160,000,000 obtained against certain parties who had taken money from the trust when it was insolvent. In David Rubin and Henry Lan v […]

A complex transaction to purchase derivatives involved various contracts with various jurisdiction clauses. In UBS AG & Anor v HSH Nordbank AG [2009] EWCA Civ 585 the respondent had brought proceedings in New York claiming that the applicant made fraudulent misrepresentations which induced the transaction, but earlier that day, the appellant had issued proceedings in […]

One director of a company was in the habit of allowing the other director to replicate his signature on financial documents, if he consented. One such document was a debenture pursuant to which the company’s bank appointed administrators. In the meantime, the relationship between the two directors became strained and the non signing director challenged […]

The difference between a guarantee and an indemnity is that liability under a guarantee depends on a separate liability between a third party debtor and the creditor who holds the guarantee, whereas an indemnity is an independent obligation to compensate for a loss. In many cases, the wording leaves the nature of the obligation open […]

A debenture which was given by a company pursuant to a resolution at a board meeting which was not properly convened should not bind a company. However, in Stewart Ford v Polymer Vision [2009] EWHC 945 (Ch) the relevant director who executed the document had ostensible authority to sign agreements on its behalf; in other […]

In Andrew Fender v National Westminster Bank Plc [2008] EWHC 2242 (Ch), the bank asked the court to set aside a deed of release of a charge, over the property of a company, where the bank had overlooked that there remained debts due to it. The company later went into administration and the bank appeared […]