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08 February 2013 / Simon Duncan
Issue: 7547 / Categories: Features , Commercial
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Upsetting the balance

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Liquidators can apply the hindsight principle when assessing whether a company is past the point of no return, reports Simon Duncan

Much has been written about the Court of Appeal’s decision in BNY Corporate Trustee Services Limited v Eurosail UK 2007-3BL PLC [2011] EWCA Civ 227. The decision has been appealed to the Supreme Court and is listed to be heard from 25 February 2013.

Since the decision was handed down, lawyers representing liquidators of failed trading companies have encountered difficulty pursuing antecedent claims against the former directors (delinquent directors). This is because the delinquent directors have used the decision to argue that the impugned transactions were not effected at the “relevant time” as defined in s 240 (2) of the Insolvency Act 1986 (IA 1986).

Section 240 (2) states: “Where a company enters into a transaction at an undervalue or gives a preference at a time mentioned in subs-s (1)(a) or (b), that time is not a relevant time for the purposes of s 238 or 239 unless the company—(a) is at

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MOVERS & SHAKERS

London Solicitors Litigation Association—John McElroy

London Solicitors Litigation Association—John McElroy

Fieldfisher partner appointed president as LSLA marks milestone year

Kingsley Napley—Kirsty Churm & Olivia Stiles

Kingsley Napley—Kirsty Churm & Olivia Stiles

Firm promotes two lawyers to partnership across employment and family

Foot Anstey—five promotions

Foot Anstey—five promotions

Firm promotes five lawyers to partnership across key growth areas

NEWS
Freezing orders in divorce proceedings can unexpectedly ensnare third parties and disrupt businesses. In NLJ this week, Lucy James of Trowers & Hamlins explains how these orders—dubbed a ‘nuclear weapon’—preserve assets but can extend far beyond spouses to companies and business partners 
A Court of Appeal ruling has clarified that ‘rent’ must be monetary—excluding tenants paid in labour from statutory protection. In this week's NLJ, James Naylor explains Garraway v Phillips, where a tenant worked two days a week instead of paying rent
Thousands more magistrates are to be recruited, under a major shake-up to speed up and expand the hiring process
Three men wrongly imprisoned for a combined 77 years have been released—yet received ‘not a penny’ in compensation, exposing deep flaws in the justice system. Writing in NLJ this week, Dr Jon Robins reports on Justin Plummer, Oliver Campbell and Peter Sullivan, whose convictions collapsed amid discredited forensics, ‘oppressive’ police interviews and unreliable ‘cell confessions’
A quiet month for employment cases still delivers key legal clarifications. In his latest Employment Law Brief for NLJ, Ian Smith reports that whistleblowing protection remains intact even where disclosures are partly self-serving, provided the worker reasonably believes they serve the ‘public interest’ 
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