Insolvency

Members of Wilberforce Chambers’ Insolvency Group specialise in all aspects of corporate and personal insolvency litigation and advice. We do so in the UK and offshore. Our Group includes winners and nominees for Insolvency and Restructuring industry awards and authors of leading textbooks in the area.

Members have been involved in high-profile insolvency matters in many jurisdictions over the years. Examples include Equity Trust (Jersey) Ltd v Halabi [2022] (a pivotal Privy Council decision on the interplay between insolvency and trusts law), Leeds v Lemos [2017] (the leading case on the right to assert privilege in insolvency), Akers v Samba [2017] (the Supreme Court’s decision on void transactions under s.127 of the Insolvency Act 1986), Re Stanford International Bank [2016-2017] (acting for former liquidators in jurisdiction battles in London and professional negligence claims in London and Antigua), and Re Nortel / Lehman [2013] (the Supreme Court’s decision restating the law on provable debts).

We also work in connection with restructurings, in particular where issues cross-over with our other practice areas such as property and pensions. Recent examples include the New Look CVA, the Travelodge CVA, the pensions restructuring case of Halcrow, the HMV CVA and the Baha Mar receivership and provisional liquidation in the Bahamas.

We act on office holder claims, directors’ disqualifications as well as dealing with international and multi-jurisdictional disputes under both the EU Regulation on Insolvency Proceedings and the Cross-Border Insolvency Regulations.

Chambers offers strength in depth, from senior KCs to recently qualified juniors. Members are experienced in acting for creditors (secured and unsecured), debtors, officeholders and others in insolvency related matters. Chambers is also able to draw on Members’ expertise in other specialised areas of law, including pensions, civil fraud, trusts, asset recovery and property law.

Marcia Shekerdemian KC sits as a Deputy Insolvency and Companies Court Judge.

Publications

James Ayliffe KC is co-author of Transaction Avoidance in Insolvencies, OUP, 3rd ed (2018), and the specialist editor of the insolvency chapter in one of the principal practitioner texts on landlord and tenant law, Hill & Redman’s Law of Landlord & Tenant.

Tom Robinson co-edits and he, Marcia Shekerdemian KC, Anna Littler and Bobby Friedman are contributors to Sweet & Maxwell’s Kerr & Hunter on Receivers and Administrators,  21st ed, 2020

Lexa Hilliard KC is a contributor to OUP’s Company Directors – Duties, Liabilities and Remedies 3rd Edn 2017 (edited by Simon Mortimore)

David Pollard has written “Corporate Insolvency: Employment and Pension Rights” (2022), “Corporate Insolvency: Employment Rights” (2016) and “Corporate Insolvency: Pension Rights” (2016).

Rankings and recognition

Chambers & Partners 2024: Wilberforce Chambers is noted for its impressive work tackling both corporate and personal insolvency matters. Members are frequently called upon to undertake cases arising both in the UK and further afield, and offer significant expertise in the handling of complex multi-jurisdictional disputes. Market commentators note that “the barristers at Wilberforce are highly intelligent and extremely capable” and “have good experience on a range of insolvency matters,” with particular areas of strength for the set spanning administrations, CVAs, restructurings and schemes of arrangement. The team is also regularly instructed in cases involving complex pensions and property elements, owing to the set’s established strengths in these areas. An enviable client list includes creditors, debtors and insolvency office holders. Recent cases of note include defending a former director against wrongful trading and misfeasance claims worth over £160 million in relation to the collapse of BHS.

The Legal 500 2024: Wilberforce Chambers specialise in all aspects of corporate and personal insolvency litigation and advice, both domestically and internationally. Lexa Hilliard KC was instructed In the matter of Lehman Brothers Holdings PLC, a high value and multi-party trial arising out of the Lehman Brothers’ collapse concerned with the ranking of different tranches of subordinated debt, totaling several billions. Marcia Shekerdemian KC specialises in all aspects of personal and corporate insolvency, while Daniel Lewis‘ insolvency practice focusses on director and office-holder misfeasance and cross-border work, with expertise in offshore financial services insolvencies.

TRI Awards: Winner of Insolvency & Restructuring Chambers of the Year 2019, 2020 and 2021.

 

Notable cases

Re FTX Bahamas

The ongoing liquidation of the world’s second largest cryptocurrency exchange. Lexa Hilliard KC is assisting as Counsel to the Joint Provisional Liquidators of FTX Digital Markets Ltd. in the Bahamas, including, in particular, advising on cross border issues arising in the provisional liquidation.

City Gardens v Dok 82 [2023]

High Court confirms that a winding up petition may be brought notwithstanding a foreign exclusive jurisdiction clause.

Read the full judgment here.

Equity Trust (Jersey) Ltd v Halabi [2022]

A key Privy Council decision of significance throughout the common law world, concerning the interplay between insolvency and trusts law. It has particular importance in circumstances where the trust fund is ‘insolvent’, in the sense that the trust assets are insufficient to meet the amounts due under the trustee’s right of indemnity.

To read a copy of the Equity Trust (Jersey) Ltd v Halabi judgment please click here.

Counsel General for Wales & Ors v Gareth Allen (as Official Receiver) & Ors [2022]

The first occasion on which the courts have considered whether a liquidator’s power under s.167(1) and Sch.4, para.5 of the Insolvency Act 1986 to “to carry on the business of the company so far as may be necessary for its beneficial winding up” can include consideration of environmental and other public interest factors.

A copy of the judgment can be found here.

Lehman Brothers Holdings Scottish LP 3 v Lehman Brothers Holdings PLC & Ors [2021]

This was one of the last cases arising out of the high-profile collapse of Lehman Brothers. Heard in the Court of Appeal, it concerned the ranking of subordinated debt in the administrations of two Lehman companies.

To read a copy of the judgment please click here.

 

Al Jaber and others v Mitchell and others [2021]

$1 billion fraud/insolvency claim in the Court of Appeal by liquidators against a former director for breach of fiduciary duty relating to various asset transfers made 2010-2017. A keenly awaited decision which considered the application of the doctrine of immunity from suit to statements given by a former director during an examination under section 236 Insolvency Act 1986.

Read the Al Jaber and others v Mitchell and others judgment here.

AHAB v SAAD [2021]

The longest and largest appeal ever heard by the Grand Court of the Cayman Islands including substantial issues of cross-border insolvency, tracing and asset recovery.

Arcelormittal USA LLC v Ruia and ors [2021]

The case concerned an ongoing dispute between the world’s two largest steel families – Mittal v Ruia. The dispute initially pertained to the enforcement of a $1.5bn US arbitration award in England and Wales.

 

Re Vijay Mallya [2021]

Representing a consortium of Indian banks, seeking Dr Mallya’s bankruptcy for a £1 billion debt. Dr Mallya, a famous and controversial public figure (and MP) in India, is the fallen Kingfisher Airways tycoon and is fighting extradition to India to face fraud charges. Enormously complex, involving Indian law, the concept of security in English and Indian law, cross-border issues (recognition and jurisdiction) and ulterior political motive.

To read the judgment please click here.

Re Comet Group Limited [2020]

An application by the liquidators of Comet Group for directions permitting them to pay funds away to a SPV secured creditors in circumstances where the ICAEW threatened to report the liquidators to their licensing body if they did so.

Read the judgment in Comet Group Limited here.

Re Force India (Formula 1) [2019]

A consortium led by Canadian billionaire Lawrence Stroll, father of F1 racing driver Lance Stroll acquired the business and assets of the Force India racing team (owned by Indian billionaire Vijay Mallya), which collapsed into administration mid-season.

 

Re Carillion Canada [2018]

Advising on various issues arising in connection with the Canadian arm of Carillion.

Re New Look Retailers Limited [2018]

Advising landlords on rights in relation to CVA.

Re Biokenetic Europe Limited [2018]

Representing AstraZeneca UK Limited in the High Court, Northern Ireland on application by administrators for directions re: data protection and medical research records.

Paylor and others v Bowers and Others [2018]

Representing the liquidator and trustees in bankruptcy of the perpetrators of a Forex and teak Ponzi scheme resisting proceedings to discharge a WFO.

To read judgment please click here.

Re Fairhold Securitisation Ltd [2018]

In this matter, Marcia Shekerdemian KC acted for the IPs, Michael Bowell and Dermot Coakley, who without their knowledge or consent, were purportedly appointed as administrators of the company. The Judge described the conduct of the would-be appointor, Clifden IOM (No.1) Ltd as “an unprincipled asset grab” and declared that the appointment was void, awarding Marcia’s clients their costs on an indemnity basis.

Leeds v Lemos [2017]

The leading case on the right to assert privilege in insolvency

Re FREP (Knowle) Ltd [2017]

A case concerning COMI and removing administrators under para 81 of Sch B1 to the Insolvency Act 1986.

Orb a.r.l

Acting for the secured creditor and litigation funder of this Jersey company in the framework of a multi-million pound litigation funding arrangement following the collapse of the Orb v Ruhan proceedings.

Pollock v Reed [2016]

Chancery Division case on pensions restructuring.

Fieldfisher LLP v Pennyfeathers Limited [2016]

Arbitration clauses and administration.

Re Baha Mar Ltd [2016]

Receivership and provisional liquidation in the Bahamas.

Re Sphinx

Cayman Islands case (acting for the liquidator in relation to the collapse of a prime brokerage house).

Lehman Bros International Europe Ltd

Acting for the liquidator in relation to the distribution of US $19bn of assets, and acting for creditors, office-holders and the Pensions Regulator in connection with pensions matters.

Re Nortel

Acting for creditors, office-holders and the Pensions Regulator in connection with pensions matters.

Re Storm Funding (in administration) [2014]

Bus L R 454: rule against “double-dipping”.

Isis v Kaupthing

Representing the liquidators of Isis Ltd, an Isle of Man subsidiary of Kaupthing Bank, in in highly contentious insolvency proceedings in England and the Isle of Man involving GBP500 million of claims.

Insights View all thought leadership

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    Articles

    When doing nothing is not enough: the liabilities of directors for inaction

    Daniel Lewis has written an article for Issue 14 of TL4 FIRE Magazine’s annual ‘Contentious Insolvency Edition 2023‘. To read the full article, please click here.

    By Daniel Lewis
    Monday 25 September 2023

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    Articles

    Pensions, personal bankruptcy and creditor recovery: recent developments

    David Pollard and Joseph Steadman’s article, ‘Pensions, personal bankruptcy and creditor recovery: recent developments’, has been published in Issue 37.2 of Trust Law International by Bloomsbury Publishing. Trust Law International is a well established quarterly journal with a mixed readership... Read more

    By David Pollard | Joseph Steadman
    Friday 15 September 2023

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    News

    Marcia Shekerdemian KC and Jessica Brooke on the Women in FIRE Advisory Committee

    ThoughtLeaders4 has recently launched an initiative that embodies the core values of empowerment, knowledge exchange, and inclusivity – Women in FIRE. We are delighted to announce that Marcia Shekerdemian KC and Jessica Brooke are on the advisory committee. TL4 says: “This endeavour... Read more

    Tuesday 29 August 2023

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    Recent Cases

    City Gardens v Dok 82: High Court confirms that a winding up petition may be brought notwithstanding a foreign exclusive jurisdiction clause

    Insolvency, International / offshore

    Bobby Friedman
    Monday 15 May 2023

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Upcoming events View all events

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    Events / Webinars

    Wilberforce Insolvency Conference & Dinner 2024

    Thursday 1st February 2024 | 12.30pm - 7pm, followed by dinner
    The Carlton Tower Jumeirah, London

    Price - TBC

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Past events View all past events

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    External Conferences

    INSOL Cayman Islands Seminar

    Wednesday 15th November 2023
    Ritz Carlton, Grand Cayman

    Speakers:
    Clare Stanley KC

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    Events / Webinars

    Wilberforce Fraud, Trusts & Asset Recovery Conference 2023

    Wednesday 8th November 2023 | 12.45pm - 5.30pm, followed by drinks
    Courthouse Hotel Shoreditch, London

    £120 + VAT | 3.5 CPD

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    External Conferences

    TL4 x Keidan Harrison & Fieldfisher: Risks and Opportunities in the GCC Region for Disputes, Insolvency and Asset Recovery Practitioners

    Monday 16th October 2023 | 5.30pm - 9.00pm
    Fieldfisher London, Riverbank House, 2 Swan Lane, London, EC4R 3TT

    Free to attend

    Speakers:
    Bobby Friedman

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    External Conferences

    Corporate Insolvency Conference

    Tuesday 10 October 2023 | 1.45pm - 5pm
    Online

    Speakers:
    David Pollard

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