Reviewable Transactions & Insolvency - Lessons Learned from Recent Case Law

Introduction

A common occurrence in corporate and personal insolvency is the review of transactions the person or company made prior to their insolvency.

The purpose for conducting such reviews is to discover whether the individual made any transactions which could be impugned under the Insolvency Act 1986 through one of its antecedent transaction provisions.

The two primary antecedent claims, preferences, and transactions at an undervalue, are limited to specific periods of time prior to an insolvency, which often prevents claims being brought.

Additionally, a special type of undervalue claim, a s.423 claim for transactions defrauding creditors, exists without the normal limitations of the other antecedent claims in the time in which they might be claimed.

These special sub-sets of undervalue claims can be brought both by insolvency practitioners serving as liquidators, administrators, or trustees in bankruptcy, but can also be brought by private creditors outside of any insolvency proceedings - even if a winding-up or bankruptcy has not been ordered.

There have been a variety of new judgments with significant impacts on the three main types of reviewable transactions.

This webinar will examine the most notable of those judgments and their impact for practitioners who are advising or bringing these types of claims.

What You Will Learn

This webinar will cover the following:

• Procedural Issues with s.423 Claims:
• Manolete Partners PLC v Hayward and Barrett Holdings Ltd
• The new realities of issuing s.423 claims via Part 7 procedure
• Mixed proceedings with other insolvency applications
• Lemos v Church Bay Trust Co Ltd
• Creditor issuing proceedings without permission of the Court or the office-holder
• Officeholder adding and taking control of the proceedings
• S.423 Claims Update:
• Invest Bank PSC v El-Husseini
• Can a director enter into a ‘transaction’ if their acts are the acts of a company?
• Morina v McAleavey
• Is the strength of the claim sought to be avoided an element of a s.423?
• S(s). 239 & 340 - Preference Payments Update:
• Kelmanson v De Weyer & Gallagher
• Subjective thought as to security and its effect on a preference test
• Preferences at a distance
• Manolete Partners Plc v Coleman
• Rebutting the presumption of a preference
• S(s). 238 & 339 - Transactions at an undervalue update:
• Re City Build Ltd
• Evidence and burden of proof for proving the TUV components
• Re Fastfit Station Ltd
• ‘Meaning’ of a ‘transaction’ for component elements of a TUV

This webinar was recorded on 30th October 2023