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Following my recent blog entry on the Bank of England's letter to the Insolvency Service, regarding the administration procedure, I can now add a link to Mr Justice Blackburne's judgment in Re Lehman Brothers International (Europe) (No 2),  EWHC 2141 (Ch) (21 August 2009). The case concerned an application, "brought both by way of ordinary application pursuant to paragraphs 63 and 68(2) of schedule B1 to the Insolvency Act 1986 and by way of a Part 8 claim form, is by the administrators of Lehman Brothers International (Europe). Its purpose is to establish whether a scheme of arrangement under Part 26 of the Companies Act 2006 ("the 2006 Act") which the administrators wish to promote between LBIE and certain scheme creditors is one which the court has jurisdiction to sanction. If there is jurisdiction then the administrators seek a direction that they be at liberty to apply to the court for directions with a view to convening meetings of scheme creditors under section 896 of the 2006 Act."
Professor Walters has also commented on the Bank of England letter. He notes:
"I'm not sure a large, unusual and admittedly complex case like Lehman should be used as a vehicle for changing rules that work tolerably well in the majority of cases. As a matter of first principle - equitable rules on the administration of a fund, Berkeley Applegate and, dare I say, the oft maligned HL decision in Buchler v Talbot - the costs of the administration ought to be borne by those who benefit and the argument of the hedge funds (as reported here) appears to be entirely unmeritorious."
I have to say that I do concur with this statement by Professor Walters. Any other views out there on the letter? Here is the Guardian article again for your reference:
""The Bank of England's financial markets law committee has urged the Insolvency Service to change regulations over administrations in order to avoid uncertainy, including that of Lehman Brothers.
In a letter to Stephen Leinster, director of policy at the Insolvency Service, the FMLC urged regulators to change the present insolvency law, especially the rules relating to administration liabilities.
"It appears to the members of the FMLC that the issues of legal uncertainty … have materially affected market participants in their dealings with Lehman Brothers International (Europe) after its collapse and that this offers direct evidence of the need for these issues to be addressed," wrote Joanna Perkin, FMLC secretary.
Financial institutions, mostly hedge funds, which held $14bn of assets at Lehman, have opposed plans under which they would help pay for the long administration process. Under a proposal, the Lehman administrator, PricewaterhouseCoopers, as well as the lawyers involved and the about 500 Lehman staff , would receive some of their payment from the claimants.
"Because a significant part of the work being done … relates to the return of assets, the proposal is that an element of that cost is applied to the people who will benefit," said PWC administrator Tony Lomas. "If the people whose assets are tied up in the company do not pay for that work, the administrator would question what work he would do because the cost would fall on the unsecured creditors who derive no benefit."
Under the law, parties involved in an administration are paid from the company's assets, before the rest of the money goes to creditors. However, hedge funds argue that it would be unusual for a company to pay for the administration process out of a business's proprietary holdings, instead of its estate."
"This is the ultimate statement of where the law on IVAs is to be found in our great common law...