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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

03 DEC 2012

Notes on Professor Milman's recent lecture

One of my undergraduates attened Professor Milman's interesting and informative lecture at the Institute of Advanced Legal Studies (IALS) last week. Here are the details from Edita Kabeciute's note: 

"Institute of Advanced Legal Studies, University of London

Stewardship and the Insolvency Practitioner

29 November 2012, 18:00 – 19:00

Professor David Milman, School of Law, University of Lancaster and IALS Visiting Fellow 2012

Chaired: Dr Tribe

Current work of the Professor, ‘Governance on the distressed firms’; SME’s, and,  Undergoingness.

1. Definition Issues.

S 3 28 IA; s 30. Office Holder- s.230, 231, 232-236. Offices of the Courts- definition less than clear.Schedule b1. Administrator similar to the Officer to the Court. Courts view. Appointee- Rationale: too many definitions.


2. Insolvency Practitioner.

 a) Trustees and non-trustees.

 b) Movement towards trust position.  Stewarship: medicallaw practice linked with insolvency writing of the law? Dates: before and 1982. Ref.to ‘R3’, Trade Bariers.


3. Public and Private Stewardship.

Appointment to Office.

a. Healthcare Management Services Ltd: The bigger and the larger creditor.

b. The para 22 procedure: Minmar administration saga- Administration, procedural errors. See HJ Purle in the Re BXL Services [2012] EWHC (Ch) (Norris J).

The provision can be used to devaluate, and no need to the Court procedure (?).

Compare the case with the following case.

c. Re Eco Link Resources Ltd (HHJ Code unreported 2.7.12.)


4. Powers of IPs.

 Problematic:  Pivot of Disclaimer- the Liquidator. Mr Scott- ‘Judicial Creativity’.

a. Re La Senza (Uniserve Ltd. V Croxen) [2012]: the power of the office holders (third party).-s.234 and liens. ‘’An interesting case’’

b. Re UK Steelfixers [2012] EWHC 2432; Judge Perle. Solvency Act 6.16 put into context. Administrator not appointed, but liquidation; an overriding judicial control.

c. ‘Jackson Reports’. Recovery claims- concessions with regards to new curbs contained in ‘Legal Aid, S & X Act 1992.’ Extra Statutory concession.


5. Duties of IPs.

 Sources: primary legislation, including self-regulation; e.g. ‘Codes of ethos’; rather held against individuals. Also, cases, the following.

a. McAtteer v Lismore [2012] NICh7 (Deery J)- duty to take reasonable care when realising estate. Reasonable care wasn’t taken; and so, the duty wasn’t discharged.

b. Interface between the Insolvency law, Trust law, and, Charity law. In particular, the Trust law. Wedgwood Museum [2011] EWHC 3782 (Ch) and [2012] EWHC 1974 (Ch)- HHJ Purle reiterates the importance of protecting the appropriate stakeholders. The need for economy is dealing with estate is also stressed. Soft law concern- no need to legal representation; and the cost effectiveness issue.


6. Exercising Control over IPs. 

The vast majority of IP removal fails, as it was in the following case.

a. Doffman and Issaacs v Wood and Helland [2011] EWHC 1008 (Ch) (Proudman J).

a. Costly; Duplication. 

b. Judges may not consider.

c. Removal application.

b. ‘Judicial review’, see comments of Arnold J in Bramston v Haut [2012] EWHC 1279 (Ch).

c. Role of the RBSs.

d. Who is the controlling agent? The creditors. Public service- disreputable practitioners. 


7. Rewarding Stewardship and Meeting Expenses.

 Ferris Report, 2004, 2012 Practice Report. Issues: transparency; value for money. Prof.’LoPucki’ and Prof.Dougherty).

a. Practice Direction [2012] BCC 409 (Part 5. Reproduces 2004 guidance); and value for money.

b. Re MK Airline Ltd [2012] EWHC 1018 (Ch)- potential use of para 99 charge

.

8. Reformed and Policy Issues (‘’lighter issues’’).

A. OFT Market Study Report June 2010: secured creditor. Recommendation: ‘’Should ne and independence complaints procedure’’. Insolvency has it in the use of the judicator. Refer to Adrian Walters, Nottingham Tent for conclusions.

B. Insolvency Service Response December 2011. According to Prof. D. Milman, it could take that route. Criticism- needs to be brought into light.

C. Provision of s.233- could the language of this be extended to a wider extent? Could be introduced, later in the day. 

D. World Bank, Doing Business (2012)- the UK#6 for tackling insolvency.

E. Enterprise and Regulatory Reform Bill? In the future.


9. Questions.

*Receiver of the trustee. **Re Ex Parte James- bonding regulators (record of the lecturer). Compulsory liquidation?  Wedgwood  & Ex Parte, where the judge didn’t  put much attention to the Ex Parte James. *** Are IPs mature in for remunerations? Publicity misguided, causes problems. Overall, there will be some regulations. This needs to be reinforced by the Insolvency Service. Skewed picture: the good decisions in cases are not publicised. Interests: time value for money. **** The exception: the BCC, with regards to the mathematical remuneration of the insolvency funds allocations. ***** The Government Distressed Firms, by Prof. D. Milman. s.722./s.1.7.2. Provision- could be extended? Not really, but in the form of Twilight."


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