Fountain Court Chambers

London & Singapore

Restructuring/insolvency

Many members of Chambers have experience of litigation arising out of corporate insolvency, including applications relating to the conduct of Administrations, Receiverships and Liquidations, disputes as to the Powers of Liquidators and proceedings for the Recovery of Assets.

Members also undertake advisory work and litigation in relation to restructuring issues and advice relating to corporate governance and transactions generally, including taxation issues.

In these troubled times, claimants look at a number of overlapping areas, in particular between fraud, company law (including directors’ duties) and insolvency law to try to recoup losses from many different sources such as insurers.  Members who specialise in Insolvency and Restructuring also have substantial experience in those areas, making them well-placed to handle such complex matters.

Members are familiar with the requirements of corporate insolvency, and are comfortable in litigating on the conduct of Administrations, Receiverships and Liquidations,  both for administrators, the insolvent company, directors, interested parties, including banks, as well as the Department for Business, Innovation, and Skills, such as Instant Access Properties; Secretary of State v. Gifford [2011] EWHC 3022 / [2012] 1 BCLC 710.

That includes work done advising and acting in relation to claims for the recovery of assets of insolvent companies (preference, transactions at undervalue, wrongful trading and misfeasance claims) and in relation to the powers of liquidators and receivers, including obtaining the discharge of a without notice injunction restraining administrators from acting, and acting for creditors in successfully opposing applications to set aside a statutory demand for financially significant debts.

The set’s appellate success can be seen through its representation in the long running Re Paycheck Services Ltd litigation, brought to recover the unlawful payment of dividends from de facto directors in 43 companies, in a claim brought by HMRC under s.212 Insolvency Act 1986, which ultimately went to the Supreme Court. (Re Paycheck Services Ltd: HMRC v. Holland [2010] UKSC 51)

The set also achieved considerable success following cross-examination of the key government witnesses involved in the most prominent multi-handed first instance directors’ disqualification trial: the high-profile Farepak case.

They have also undertaken extensive advisory work on a range of restructuring and associated issues arising from both the impact of private equity investment on corporate structures and disputes, and the profound effects of the credit crisis on the finance and corporate sectors, including in particular the markets for structured products, SIVs and other leveraged investment vehicles.

Members of chambers have advised on the impact of the collapse of Lehman Brothers, one of the largest insolvencies in the global financial sector, and the consequent fall-outs for creditors, counterparties, regulators, the revenue authorities, and the like.

Advice given in the administration of Lehman Brothers Europe, for example, involved assets worth $2.3 billion, and required an understanding and analysis of the role of broker-dealers, the operation of clearing systems, and the complex intra-group financial relationships within the global Lehman empire.

In addition to their UK insolvency experience, members of chambers have demonstrated their skills in cases involving Russian, Middle Eastern, and offshore parties such as the case of Masri v Consolidated Contractors International [2011] EWHC 409 (Com).

The set has provided offshore and onshore representation of a number of companies in liquidation in connection with an alleged fraud involving US$9.2 billion, in the AHAB v Saad Investments Company case in the Cayman Islands, in which members of the set have advised in connection with allegations relating to directors’ breach of duty.

They have also advised in relation to the attribution of knowing receipt and dishonest assistance, conspiracy, and unjust enrichment, all of which are classic restructuring and insolvency matters.