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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

26 SEP 2013

The Trustees of the Olympic Airlines SA Pension and Life Insurance Scheme v Olympic Airlines SA [2013] EWCA Civ 643; [2013] BPIR 663

(Court of Appeal, Moore-Bick LJ, Sir Stephen Sedley and Sir Bernard Rix, 6 June 2013)

On 2 October 2009, OA was placed under a special liquidation procedure under Greek Law, being main proceedings for the purposes of the EC Regulation on Insolvency Proceedings. From May 2010 all OA's UK activities were relocated to a London address, but in June 2010 its bank in England was ordered to cancel all direct debits and standing orders, with any necessary payments to be made direct by the Greek liquidator. The UK employment contracts were terminated with effect from 14 July 2010, although three employees were retained on an ad hoc basis to assist in the running down of the business. On the winding-up of the pension scheme there was a deficit of some £15m due from OA to the trustees of the scheme. The trustees presented a winding-up petition in order to trigger responsibility by the Pension Protection Fund for the scheme. The issue was whether secondary insolvency proceedings were permitted under the EU Regulation, which depended on whether OA had an ‘establishment' in England at the date of the petition. The Chancellor held ([2012] EWHC 1413 (Ch); [2012] BPIR 1163) that the evidence supported the view that OA had an establishment within the jurisdiction at the relevant time. The Court of Appeal allowed OA's appeal. As at the date of the petition, there was no establishment within the jurisdiction; the operations was being wound down and no commercial operations were taking place. There was no jurisdiction to order a secondary winding-up in England. 

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