Articles

Rosanna Foskett has produced an article about a recent decision of the King’s Bench Division, OOO Nevskoe v UAB Baltijos Šalių Industrinio Perdirbimo Centras and Bilderlings Pay Ltd. This article is useful reading for practitioners in relation to judgment debt/ arbitration award enforcement in multijurisdictional disputes, particularly where there is a looming spectre of insolvency of the judgment/award debtor.

This article was first published in Issue 12 of the ThoughtLeaders4 FIRE Magazine.

James Ballance has produced a short report on the case of Golding v Martin (2022) EW Misc 2 (CC). This case would be of particular interest to property litigators. The article was first produced for Property Law UK and can be viewed here.

This article was originally published by Property Law UK.

James Ballance has produced an article for Property Law UK, named ‘Revisiting the Illegality Defence: When will the ex turpi causa doctrine shield conveyancing solicitors from liability for professional negligence?’. The article can be viewed here.

This article was originally published by Property Law UK.

In this article, Rosanna Foskett analyses the background, court decision and practical implications of the case Re Lehman Brothers International (Europe) (in administration) and other companies [2022] EWHC 2995 (Ch).

This article was first published by Lexis®PSL on 9 January 2023, and can also be found on their website here (subscription required).

Narinder Jhittay has recently written an article for LexisPSL titled ‘No implied limit on a contractual right to terminate co-production agreement (Portobello Productions v SunnyMarch)'. The article looks at the background and practical implications of Portobello Productions v SunnyMarch, as well as what the court decided.

Edmund Cullen KC acted for the Claimant (which was successful in its application).

The Court of Appeal has recently considered the relationship between the Immoveables Rule and Modified Universalism in the context of common law recognition of a foreign insolvency.

Rowena Page summarises the key points in an article which can be downloaded from our website and found here (subscription required). This analysis was first published on Lexis®PSL on 27 January 2022.

Rowena Page has recently written an article for LexisPSL titled ‘Disputed winding-up petitions—bare assertion will not suffice (Fenton Whelan Ltd v Swan Campden Hill Ltd)’. The article looks at the background and practical implications of Fenton Whelan Ltd v Swan Campden Hill Ltd, as well as what the court decided.

This article was first published by Lexis®PSL on 15 September 2021.

In this article, Catherine Addy QC, Rebecca Page, Rosanna Foskett and Rowena Page examine the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2021 (“CIGA Extension Regulations 2021”) which come into force on 26 March 2021, and further extend the suspension of wrongful trading liability - almost a year since the Government announced, on 28 March 2020, the range of measures aimed at protecting companies affected by COVID-19 and their directors, as they tried to steer businesses through the choppy waters which were then anticipated to last only a few months.

Associate Member Beverley Vara looks at what needs to be considered before and during a virtual mediation and how to get the best out of the day.

One thing the pandemic has done is accelerate change in business practices. All those tasks which we thought had to be done face to face, now seem so much more possible online. Even mediation, which seems so dependent on relationships and face to face meetings, has moved online. For certain mediations, for example where the parties are based internationally and for whatever reason travel is difficult, virtual mediation is likely to continue even after face to face mediation becomes possible again. This article sets out some things to consider both before and during a virtual mediation to get the best out of the mediation day.

Andrew Walker QC considers the courts’ approach to waiver of the right to forfeit, and how the approach to forfeiture might change after the lifting of coronavirus property measures.

This was delivered as a Seminar for White Paper's Annual Commercial Property Leases Conference in March 2021, and does not take into account subsequent statutory interventions.

Will the pandemic and its economic impact mean that tenants want shorter terms and/or break clauses, and will they get them?

Andrew Walker QC and Rob Nicholson of Ashfords LLP discuss 'What’s Ahead in 2021 For Commercial Lease Renewals?' for Property Investor News.

To read the full article, please visit their website here.

In June 2020, Wirecard AG, the substantial German fintech company, collapsed into insolvency. One consequence was that the payment processing services offered by its UK subsidiary were disrupted, exposing consumers (including vulnerable ones) to difficulties and delays in accessing their funds.

Richard Fowler considers how robust the regulation of payment processors and e-money institutions currently is in England and Wales and addresses possible reforms. He examines the FCA's new safeguarding guidance, identifying its strengths and weaknesses, and also asks what part the Financial Services Compensation Scheme and general insolvency law do (and should) play in protecting users of these services.

This article first appeared in the November 2020 issue of Butterworths Journal of International Banking and Financial Law, (2020) 10 JIBFL 676.

In this Seminar Paper (delivered in November 2019), Andrew Walker QC discusses problems with break clauses as regards vacant possession, reinstatement obligations, and the removal of tenant’s chattels and fixtures, and comments on the potential impact of the forthcoming RICS Code for Leasing Business Premises.

Following publication of new RICS Covid-19 valuation assistance to surveyors, Andrew Walker QC considers the current difficulties for commercial property valuations, and landlords’ prospects of maintaining rental values for commercial properties in badly hit sectors of the economy.

This new practice direction came into force on 6 April, and provides important changes to the procedure in insolvency proceedings.

Duncan McCombe’s article summarises the Temporary IPD’s content and puts that content into context. At the same time, Duncan seeks to provide an explanation where the drafting of the Temporary IPD may seem a little opaque.

Source: Corporate Rescue and Insolvency

Andrew Walker QC analyses the recent decision in Dreams v Pavilion Property Trustees, and considers the nature of obligations to be complied with on completion of a contract of sale and purchase.

Although the initial three-month suspension of wrongful trading provisions from 1 March 2020 was welcomed as introducing breathing space for boards of directors facing unprecedented uncertainty arising out of the COVID-19 pandemic, the majority of the insolvency legislation remains in force and unchanged.

While the government referred to the provisions relating to fraudulent trading and to disqualification orders as providing continuing checks and balances, neither is very likely to be at the forefront of the minds of directors or those advising them. By contrast, the need to consider creditors under s 172 of the 2006 Act gives rise to a duty of much broader and more uncertain parameters and represents a real and remaining risk of personal liability, particularly given the current financial climate.

Gabriella McNicholas discusses the uncertainties and remaining risks facing company directors in the June edition of Butterworths Journal of International Banking and Financial Law.

There may now be little time for the voluntary re-scheduling of lease payments due on and after the June 2020 quarter day. Andrew Walker QC explores the reasons why.

On 4 June 2020 the Chancellor handed down his decision in Re Akkurate Ltd (in Liquidation) [2020] EWHC 1433 (Ch), the latest in a line of first-instance cases on whether s236 Insolvency Act 1986 has extraterritorial effect.

Rowena Page summarises the law as it was before Akkurate, explores the decision itself, and considers where may be next for questions of extraterritoriality and s236 IA.

Since the original “Property in the pandemic” was written, on 20 April 2020, there have been further major developments in practice and procedure; even more significantly, the government has again promised wide-ranging reforms to insolvency law that are likely to have a dramatic effect on real property litigators.

Focusing once more primarily on commercial landlord and tenant disputes, Richard Fowler surveys how the Covid-19 practice directions and guidance have changed in the last month, and how the courts are responding to them; explains what the government is now proposing by way of further legislation; and considers how the litigation landscape is likely to look for commercial property owners and tenants in the months to come.

Looking beyond the current moratorium, what place will forfeiture have in the post Covid-19 commercial real estate market?

Rob Nicholson of Ashfords LLP and Andrew Walker QC of Maitland Chambers look to the future, considering the fine balance between the interests of landlords and tenants, and how the Government or the courts might mitigate the effects of the pandemic.

Many directors are facing difficult decisions as they try to keep their businesses afloat. Wrongful trading laws have been suspended. But other relevant laws remain unchanged. Critically directors remain subject to the creditors’ interest duty. Not only is this duty more easily engaged than the wrongful trading provisions but its precise trigger is the subject of an appeal pending before the Supreme Court. This article examines the current position and highlights other key issues to be kept firmly in mind by directors and those advising them in these challenging times.

Many litigants and court users will be assessing the impact of the COVID-19 pandemic on forthcoming hearings and trials.

Edward Meuli discusses the decision of Re One Blackfriars Ltd [2020] EWHC 845 (Ch), where the Court refused an application to adjourn a trial on account of COVID-19, and explores the factors likely to be involved in such applications.

A month into the lockdown, what is the state of play in real property litigation? What developments can we expect in the near future?

Focusing on commercial landlord and tenant disputes, Richard Fowler surveys the Covid-19 legislation, protocols and guidance; considers what the courts are currently able to do; and identifies the themes, in both commercial and insolvency law, that are likely to dominate the field in the months to come. It is intended to update this article periodically to reflect further changes in this fast-moving subject.

Where does the law now stand on implying a term that consent “is not to be unreasonably withheld”, if a covenant in a lease or a restrictive covenant does not say this expressly?

Drawing on commercial cases, this article by Andrew Walker QC seeks to inform, challenge, and perhaps provoke further thought.

Parties to a contract dealing with rights over an asset may agree that the asset must not be transferred to anyone else except in particular circumstances. What happens if the asset is transferred to someone else in breach of those restrictions?

Can a claim be made against the transferee? Where the asset is land, lawyers tend to look for a remedy in property law, but that is not the whole story. If the asset is not land, or if property law cannot help, there can still be a claim. Andrew Walker QC discusses one of the main alternatives in the law of tort, and the potential for obtaining an injunction to unravel a wrongful transfer.

On demand bond and the ambit of the Marubeni presumption.

In the December 2019 edition of the Butterworths’ Journal of International Banking and Finance Law, (2019) 11 JIBFL 715, Adam Smith examines the ambit of the Marubeni presumption in the light of the decision in Rubicon Vantage International Pte Ltd v. Krisenergy Ltd [2019] EWHC 2012 (Comm), and in particular the application of the Marubeni presumption in determining the extent of an admitted on-demand liability

Source: Butterworths’ Journal of International Banking and Finance Law, (2019) 11 JIBFL 715

Solving the conundrum of Compton Beauchamp

The decision of the Court of Appeal in Cornerstone Telecommunications Infrastructure v Compton Beauchamp Estates (2019) has met with a sustained challenge by some code operators. That may in part have been aimed at securing wider rights than were intended, but at least in some circumstances it seems to lead to a genuine ‘black hole’ for sitting operators. With the case now heading to the Supreme Court, Andrew Walker QC considers whether there is a sensible solution.

Questions often arise regarding proposed transactions involving charity land: Is there power to sell? What factors do trustees have to bear in mind? What is specie land and designated land? This article tries to answer some of these questions.

Source: Practical Law

Paul Clarke explores the challenges of establishing that trust obligations have arisen after the failure of a joint venture

In the recent Court of Appeal decision earlier in 2018 in Generator Developments Ltd v Lidl UK GmbH, Lidl had purchased in its sole name a site at Wates Way Industrial Estate, Brentwood, Essex on which it intended to build a supermarket, and Generator, a property development company, claimed that the purchase was a joint venture and that Lidl held the site on trust for both parties.

Source: This article was first published in Trusts and Estates Law & Tax Journal (October 2018) and is also available at lawjournals.co.uk

Donors often ask if their prized work of art or historical artefact can be given to charity but protected from creditors. This article considers some of the options available.

Source: Practical Law

The management of charities’ reputations is much in the news. This article explores trustees’ legal duties in this respect and the limitations of the present law.

Source: Practical Law

The Charity Commission is increasingly taking regulatory action in response to conflicts of interest and conflicts of loyalty. This article explores conflicts of loyalty and the extent to which it is (and is not) possible to authorise a trustee who owes duty to two different organisations to continue to act.

Source: Practical Law

In 2014 the High Court decided the biggest divorce case in English history: Sir Chris Hohn, hedge fund manager, was ordered to pay his wife, Jamie, $530 million.

But the real money didn’t lie in their household fortune. It lay in the charity they had created together.

Matthew Smith reviews this important charity law case.

Source: Practical Law

In this Seminar Summary (delivered in October 2017), Andrew Walker QC gives short answers to questions relating to the extent to which the courts are allowing any one party to gain an edge in default and forfeiture situations, and identifies the key recent cases.

A look at the legal landmarks that have affected the profession recently and how they’ll affect insolvency in 2016.

Source: R3 Recovery Spring 2016

Edited transcript of a debate held on 22 October 2015 as part of the Chartered Institute of Arbitrators Centenary celebrations, focusing on the use of guidelines in international arbitration, Maitland Chambers, London

Source: (2016) 82 Arbitration. The International Journal of Arbitration, Mediation and Dispute Management published by Thomson Reuter

What effect will the recent Court of Appeal decision of Erste Group Bank AG v JSC 'VMZ Red October' have on jurisdictional issues in English law? Richard Morgan QC, one of the barristers who argued the case, says that although these types of issues may be litigated more frequently, the English courts are doing a good job acting as a gatekeeper in relation to the extent of their jurisdiction.

Source: Lexis®PSL Restructuring & Insolvency

How do the duties of non-executive directors differ from those of executive directors? And more importantly for practitioners, what differences are there - if any - in the liabilities they are exposed to?

Michael Gibbon QC has produced a video master-class for the Practical Law website, a short clip is available to view on YouTube.

Source: Thomson Reuters Legal UK & Irelan

This article reviews the English law on bribes with reference to the two recent cases of UBS AG v Kommunale Wasserwerke Leipzig Gmbh and Cedar Capital Partners LLC v FHR European Ventures LLP.

Source: Butterworths Journal of International Banking and Financial Law

This month, Lawyer Monthly takes a look at Company Law, and the legal implications surrounding it. They spoke to Catherine Newman QC, a leading silk at the commercial Chancery Bar who has a strong practice both domestically and internationally, from Maitland Chambers.

Source: Lawyer Monthly

Mediators John Dagnall and Beverley Vara have written an article that asks, whether one year after PGF II SA v OMFS Company 1 Ltd, “les autres” have been “encouraged”?

Source: Estates Gazette

This short article by Michael Gibbon QC examines some key principles in relation to set-off involving Crown departments in the context of liquidation. The subject often arises for consideration in a liquidation, normally with regard to tax debits and credits, but from time to time non-tax claims will be involved too.

Source: Corporate Rescue and Insolvency - New Law Journal - Lexis Nexis

Mediation has gained momentum following the Woolf reforms. Beverley Vara looks at its evolution and why, today, it’s hard to refuse.

Source: Estates Gazette

Nigel Thomas has had his article "After Etridge" published in Trusts and Estates Law and Tax Journal (2014)

Source: Trusts and Estates Law and Tax Journal (2014) No 154 March

The Court of Appeal case of Thomas v Jeffery reminds practitioners that even late disclosure does not fetter a judge's discretion on costs. Laurie Scher reports

Source: Trusts and Estates Law & Tax Journal

Rosanna Foskett examines the recent judgment in Hart and Samways v Burbidge, which illustrates how the courts will apply the principle of presumed undue influence, even where such influence was not intentional

Source: The Law Society: PS

An article written by two of our mediators Beverley Vara and John Dagnall on the recent case of PGF II SA V OMFS Company 1 Limited [2013] EWCA Civ 1288, which extended the obligations on litigants when offered the opportunity to mediate.

Source: Maitland Mediators

Charities are already required to pay all manner of fees to other regulators. Why shouldn’t they pay a fee to their own?

Source: Property Litigation Association Website

As the authorities probe the bond dealings of JSC BTA Bank’s ex-chairman, Catherine Newman QC highlights some legal aspects of the saga that appear to add up to a near-reversal of the burden of proof.

Source: The Lawyer

This article examines, from an English standpoint and by reference to Rosewood v Schmidt and Breakspear v Ackland, the court’s discretion to intervene in the administration of a trust to order disclosure of information to beneficiaries.

Please click here to read the full article

Source: Trusts & Trustees

This seminar looks at "What is a sale and rent back scheme?".