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.

Thomas 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 and Thomas Robinson are contributors to OUP’s Company Directors – Duties, Liabilities and Remedies 4th Edn 2024 (edited by Mark Arnold KC and Consultant Editor Simon Mortimore KC)

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.

Chambers Bar Awards 2023: Wilberforce wins Set of the Year and Chancery Set of the Year

The Legal 500 Bar Awards 2022: Wilberforce wins Chancery Set of the Year

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

 

Notable cases

Re BHS Group Ltd [2024]

[2024] EWHC 1417 (Ch)

High street retailer BHS’s collapse was one of the highest-profile insolvencies of recent years, with outstanding debts of more than £1bn. The claims against the directors were for alleged wrongful trading, misfeasance, and breach of statutory and fiduciary duties. Mr Justice Leech’s 533-page judgment focused on 2nd respondent, Lennart Henningson, and 3rd respondent, former BHS general counsel Dominic Chandler.

Read the full judgment

Re FTX Bahamas [ongoing]

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.

Knell v Van Loo [2023]

[2023] EWHC 2933 (Ch)

This case involved a 7-day trial of an unfair prejudice petition, followed by a one-day quantum hearing. The petition was brought by minority shareholders in respect of two substantial property developments; at trial the Deputy Judge found numerous incidents of unfair prejudice, including a failure on behalf of the board to exercise valuable contractual rights held by the Company. Whilst the Company was heavily balance-sheet insolvent, the Deputy Judge granted a buy-out order in the Petitioners’ favour, on the basis that the Company be valued as if the unfairly prejudicial acts had not occurred, and, in addition, that part of the Company’s debt be ignored for the purposes of the buy-out order.

Read the full judgment

CLO HoldCo Limited v Highland CLO Funding Limited [2023]

[2023] GRC061

The Royal Court of Guernsey dismisses a substantial unfair prejudice application, which represents a key aspect of multi-faceted ongoing litigation connected with the bankruptcy in the US of once high-flying billion-dollar investment firm Highland Capital Management LP. 

The judgment contains interesting discussion of (i) whether breach of a duty to act in good faith necessarily amounts to bad faith, and (ii) the circumstances in which equitable considerations may have a place in governing the proper conduct of the affairs of a company.

Read the full judgment

Lehman Brothers “waterfall” litigation [2023]

Successfully acting for RSM UK Restructuring Advisory LLP, the Joint Liquidators of LB GP No.1 Ltd, in High Court litigation concerning LB GP’s claim to be paid funds out of the Lehman Brothers “waterfall”.

The litigation related to LB GP’s Court of Appeal success in 2021 and concerned, amongst other things, the competing priority of multi-billion US$ subordinated debt structures.

City Gardens v Dok 82 [2023]

[2023] EWHC 1149 (Ch)

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

Read the full judgment

Equity Trust (Jersey) Ltd v Halabi [2022]

[2022] UKPC 36

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.

Read the full judgment

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

[2022] EWHC 647 (Ch)

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.

Read the full judgment

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

[2021] EWCA Civ 1523

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.

Read the full judgment

 

Al Jaber and others v Mitchell and others [2021]

[2021] EWCA Civ 1190

$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 full judgment

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]

[2021] EWHC 1312 (Ch)

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.

Read the full judgment

Re Comet Group Limited [2020]

[2018] EWHC 1378 (Ch)

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 full judgment

Re Carlauren Group Ltd [2019]

[2020] EWHC 2685 (Ch)

Highly publicised contested application to place a luxury care home / hotel group into administration.

Read the full judgment

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]

[2018] EWHC 2244 (Ch)

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

Read the full judgment

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.

Iain Barker v Paul Baxendale-Walker [2018]

[2018] EWHC 2518 (Ch)

Acting for the petitioning creditor in the insolvency aspect of this long-running litigation.

Read the full judgment

 

Zinc Hotels (Investment) Limited and Top Zinc Ltd v Beveridge and others [2018]

[2018] EWHC 1936 (Ch)

Appearing on behalf of the Security and the Security Trustee.

Read the full judgment

Akers v Samba [2017]

[2017] UKSC 6

The Supreme Court’s decision on void transactions under s.127 of the Insolvency Act 1986.

Read the full judgment

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.

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    Wilberforce nominated in multiple categories including Set of the Year for third year running at Legal 500 Bar Awards

    Wilberforce Chambers is pleased to share that we have been nominated in multiple categories at Legal 500’s 2024 Bar Awards. Wilberforce Chambers has been nominated for ‘Set of the Year’ for the third year in a row as well as ‘Chancery... Read more

    Wednesday 10 July 2024

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    Sian v Halimedia: Insolvency vs Arbitration – Article by Ernest Leung cited in recent Privy Council decision

    In Sian Participation Corp v Halimedia International Ltd [2024] UKPC 16, Lords Briggs and Hamblen considered the issue of whether insolvency proceedings should be stayed where the underlying debt was covered by an arbitration agreement. In an appeal from the BVI,... Read more

    By Ernest Leung
    Friday 21 June 2024

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    Recent Cases

    Judgment handed down in Re BHS Group Ltd

    Insolvency, Company law

    Lexa Hilliard KC | Rachael Earle
    Tuesday 11 June 2024

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    A hidden gem? The ‘sufficient connection with the jurisdiction’ test under s.423 of the Insolvency Act 1986 in the light of Suppipat v Narogdej [2023] EWHC 1988 (Comm)’

    Tim Penny KC and Daniel Petrides have written an article for TL4’s FIRE Starters magazine entitled “A hidden gem? The ‘sufficient connection with the jurisdiction’ test under s.423 of the Insolvency Act 1986 in the light of Suppipat v Narogdej... Read more

    By Tim Penny KC | Daniel Petrides
    Monday 3 June 2024

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    Thursday 12th September 2024 | 3.45pm - 6.55pm, followed by a dinner buffet
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    Thursday 26th September 2024 | 3.30pm - 6.20pm, followed by a drinks reception
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    R3 Contentious Insolvency and Creditors Forum

    Thursday 4th July 2024
    No.11 Cavendish Square, London W1G 0AN

    Speakers:
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    Thursday 4th July 2024 | 12.30pm - 5.25pm, followed by drinks and canapés
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    IPA 2024 Roadshow Series | Manchester

    Wednesday 5th June 2024
    ETC Venue, 11 Portland St, Manchester M1 3HU

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    19th Biennial IPEBLA Conference

    Monday 27th May 2024
    Hilton Milan, Milan

    Speakers:
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