header-logo header-logo

Upsetting the balance

08 February 2013 / Simon Duncan
Issue: 7547 / Categories: Features , Commercial
printer mail-detail
istock_000016468623medium_2

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

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Birketts—trainee cohort

Birketts—trainee cohort

Firm welcomes new cohort of 29 trainee solicitors for 2025

Keoghs—four appointments

Keoghs—four appointments

Four partner hires expand legal expertise in Scotland and Northern Ireland

Brabners—Ben Lamb

Brabners—Ben Lamb

Real estate team in Yorkshire welcomes new partner

NEWS
Robert Taylor of 360 Law Services warns in this week's NLJ that adoption of artificial intelligence (AI) risks entrenching disadvantage for SME law firms, unless tools are tailored to their needs
The Court of Protection has ruled in Macpherson v Sunderland City Council that capacity must be presumed unless clearly rebutted. In this week's NLJ, Sam Karim KC and Sophie Hurst of Kings Chambers dissect the judgment and set out practical guidance for advisers faced with issues relating to retrospective capacity and/or assessments without an examination
Delays and dysfunction continue to mount in the county court, as revealed in a scathing Justice Committee report and under discussion this week by NLJ columnist Professor Dominic Regan of City Law School. Bulk claims—especially from private parking firms—are overwhelming the system, with 8,000 cases filed weekly
Charles Pigott of Mills & Reeve charts the turbulent progress of the Employment Rights Bill through the House of Lords, in this week's NLJ
From oligarchs to cosmetic clinics, strategic lawsuits against public participation (SLAPPs) target journalists, activists and ordinary citizens with intimidating legal tactics. Writing in NLJ this week, Sadie Whittam of Lancaster University explores the weaponisation of litigation to silence critics
back-to-top-scroll