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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...
Checklist—Making and administering a statutory declaration by video conference in insolvency proceedings Background Statutory declarations are a necessary part of insolvency proceedings, most commonly where a company enters members’ voluntary liquidation (MVL) (see section 89 of the Insolvency Act 1986 (IA 1986)) and where a company enters administration by an out of court appointment (see the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 3.17). Section 20 of the Statutory Declarations Act 1835 (SDA 1835) prescribes the form of the statutory declaration to be given, as set out in the Schedule to SDA 1835. SDA 1835, s 19 states that a fee is payable and this is prescribed by the Commissioners for Oaths (Fees) Order 1993, SI 1993/2297. The fee is £5 for taking an affidavit, declaration or affirmation, and an additional £2 for each exhibit therein referred to and required to be marked or for each schedule required to be marked. Apart from the form of the statutory declaration and provision as to fees, no other...
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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...
Structural considerations for Part 26A restructuring plans Statutory provisions on jurisdiction and sufficient connection/discretion At the convening hearing, before an English court will consider a Part 26A restructuring plan (RP), it will ascertain whether it has jurisdiction to do so. Part 26A of the Companies Act 2006 (CA 2006) applies to companies liable to be wound up under the Insolvency Act 1986 (IA 1986) (see CA 2006, s 901A(4)(b) and Re Virgin Atlantic applying DAP Holding NV and Re PizzaExpress). ‘Companies liable to be wound up under IA 1986’ is a similar definition to that used for schemes of arrangement, and for both schemes and RPs includes unregistered companies and foreign companies. Additionally where foreign companies are involved and when considering its discretion to sanction an RP, a court will only exercise jurisdiction over a foreign company if it has a sufficient connection with this jurisdiction (see scheme case,  Re Drax Holdings as applied to RPs by Snowden LJ in Re Smile Telecoms Holdings). Note this...
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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...
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]...
Dive into our 13 Precedents related to IA 1986
What enforcement can/would a court use against a company for unpaid fines from a criminal conviction? A company in default of a fine imposed further to a criminal conviction can ultimately be subject to an application for winding up or be placed in administration. Financial penalties A fine is a financial penalty imposed on conviction either instead of, or in addition to, any other sentence if, under the relevant offence provision, that offence is liable to a fine. A fine can be imposed in the Crown Court or the magistrates’ court. Sentencing powers in respect of corporate offenders are focused on the imposition of fines or financial penalties as corporate offenders cannot be imprisoned. Collection of fines The collection and enforcement of fines, as well as other financial orders such as prosecution costs, compensation and surcharges, is conducted by the magistrates’ courts regardless of whether the fine was imposed in the magistrates’ court or the Crown Court. Where a fine is imposed by the Crown Court, the fine order will...
Where an unregistered overseas company (registered in an EU Member State but whose centre of main interest is in the UK) enters into creditors’ voluntary liquidation under the Insolvency Act 1986, is the appointed liquidator required to register the overseas company at Companies House? The requirement to register an overseas company in the UK is detailed in the Companies Act 2006 (CA 2006) and the Overseas Companies Regulations 2009 (OCR 2009), SI 2009/1801. An overseas company has to be registered at Companies House if it opens an ‘establishment’ in the UK. An establishment is: • a branch within the meaning of the Eleventh Company Law Directive, 89/666/EEC, or • a place of business that is not such a branch Neither the Eleventh Company Law Directive, 89/666/EEC, nor OCR 2009, SI 2009/1801 give a definition of a ‘branch’, but European case law has established that a branch is a place of business that: • has the appearance of permanency • has a management function, and • is equipped...
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The Supreme Court unanimously dismissed both appeals. Applying ordinary principles of statutory interpretation, the court affirmed that the language of section 213 of the Insolvency Act 1986 (IA 1986) does not restrict liability to those involved in the management or control of the company’s business such as directors or managers, but could very well apply to someone routinely transacting with the company in the knowledge that the company was carrying on a fraudulent business. In addition, the court held that where claimant companies had been struck off and then later restored to the register, the deemed existence of the claimant companies during the period in which they were in fact in dissolution did not necessitate assuming that they lacked directors or other officers during that time. That was a question of probability to be determined on the evidence: the burden of proof was on the claimant companies and they had failed to discharge it. Accordingly, the dishonest assistance claim remained time-barred. Andrew Westwood KC, barrister practising from Maitland Chambers, comments...
This week's edition of Restructuring and Insolvency weekly highlights includes: the appointment of R3’s new president, Tom Russell, an analysis of the restructuring plan (RP) involving HMRC sanctioned for OutsideClinic Ltd, updated guidance for insolvency practitioners (IPs) dealing with regulated firms from the Financial Conduct Authority (FCA), plus a round-up of other news and cases for restructuring and insolvency professionals.
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