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Articles

Disputed winding-up petitions—bare assertion will not suffice (Fenton Whelan Ltd v Swan Campden Hill Ltd)

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. 

Alteration or Rectification: The “Malory 2” Conundrum Revisited In Northern Powergrid (Yorkshire) Plc v Leatham Estates Limited (REF 2019/0649 (FTT))

James Hanham considers the question of whether or not a claim to alter the Register on the grounds of mistake qualifies as one for “alteration” or for “rectification” by reference to current case law.

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Author(s)
James Hanham

Practice areas
Real Estate

Proposals for reform of dealing with charity land

Maxim Cardew analyses the background and the implications of the report.

On 22 March 2021 the government responded to the Law Commission’s report on Technical Issues in Charity Law. It agreed to most of the recommendations, including those which are designed to reduce some of the administrative burdens associated with dealing with charity land. Maxim Cardew analyses the background and the implications of the report.

Maxim Cardew analyses the background and the implications of the report.

This analysis was first published on Lexis®PSL on 01/04/2021 and can be found here (subscription required). 

Source: Lexis®PSL

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Author(s)
Maxim Cardew

Practice areas
Charities

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2021 – continuing a false sense of security for directors and companies alike?

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.

Preparing for and Attending Virtual Mediation

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.

How safe is the pound in your phone? Lessons from Wirecard

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.

Code operators as occupiers under the Electronic Communications Code

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.

Break Clauses – Grey Areas and Unresolved Arguments

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.

Liability under GAGAs clarified (EMI Group v Prudential Assurance)

In this article, Maxim Cardew analyses the recent decision in EMI Group Ltd v Prudential Assurance Co Ltd [2020] EWHC 2061 (Ch) in which he and John McGhee QC appeared successfully on behalf of Prudential (the landlord) against EMI (the guarantor). The court held that a guarantee (GAGA) of an authorised guarantee agreement (AGA) was valid and enforceable, despite the dissolution of the original tenant that had provided the AGA, and clarified the principles of severance applicable in the context of guarantees that would otherwise fail to comply with the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) as a result of either purporting to guarantee the liabilities of subsequent tenants or allowing such a liability to revive at some point in the future after a first assignment (eg on an assignment back). The court also considered what conditions needed to be satisfied for a guarantor to be released from its obligations ‘to the same extent’ as a tenant, as required by LT(C)A 1995. 

This article was first published by Lexis®PSL on 10/08/2020.

Source: Lexis®PSL

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Author(s)
Maxim Cardew

Practice areas
Real Estate

Commercial property valuations and rental values after Covid-19 - challenges and opportunities

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.

Beyond wrongful trading: remaining risks and responsibilities

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.

Source: Butterworths Journal of International Banking and Financial Law

The Ides of July (15th) – now or never to avoid commercial real estate insolvencies?

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.

Dreams analysis; sale contracts, completion and vacant possession

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.

Re Akkurate Ltd (in Liquidation) [2020]

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.

Property in the pandemic: Update 15 May 2020

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.

Property in the pandemic: A toolkit for commercial real estate litigators

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.

Joint Ventures: A Protean Concept

Joint venture disputes often hinge on case-specific factors in the relationship between venturers; however, distinct themes are also evolving in the case law, permitting of navigation through the issues.

With reference to the recent case of Russell v Cartwright [2020] EWHC 31 (Ch), James Hanham discusses the important developing principles relating to fiduciary duties and obligations of good faith.

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Author(s)
James Hanham

Practice areas
Real Estate

Guaranteed adjournment due to Covid-19? Think again…

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.

Disposals in breach of contractual rights – don’t forget the tort

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.

The Temporary Insolvency Practice Direction - Preparing for the Side-Effects of Covid-19

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

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