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Anthony Edwards, a FIDIC and IChemE adjudicator, arbitrator and expert determiner specialising in heavyweight construction disputes, reviews recent case law on two issues:

1. Quasi conditions precedent under FIDIC Red Book in particular the review of clause 2.5 by the Privy Council in NH International (Caribbean) Ltd v National Insurance Property Development Company Ltd (Trinidad and Tobago) UKPC 37 [2015]

2. Challenges to expert determination in the case of Begum v Hossain & Sunam Tandoori Limited [2015] EWCA Civ 717

Tuesday, 17 November 2015 00:00

James Morgan wins in the Court of Appeal

Sharma v Top Brands [2015] EWCA Civ 1140.

James successfully acted for creditors responding to an appeal by an insolvency practitioner on the grounds that the claim against her was barred by reason of illegality. For more details see http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2015/1140.

Tuesday, 22 September 2015 00:00

Alexander Rozycki Joins St Philips Chambers

St Philips is delighted to announce the arrival of Alexander Rozycki, who joins us from 4-5 Grays Inn Square Chambers.

Alexander specialises in general civil, professional negligence, EU, employment and intellectual property law and appears regularly in the County Courts and High Court in matters involving interlocutory relief, property, contracts, housing, as well as in company law matters. Alexander will be based in our London office

Chief Clerk, Joe Wilson, commented "We are delighted to welcome Alexander to chambers. His skills and expertise will enhance our London offering and aid us in ensuring that we remain the first choice for our clients both nationally and internationally ."

Alexander was called in 2005 and his profiles can be viewed by clicking here.

Property specialist John Randall QC has been named as The Lawyer Monthly’s UK Land and Property Barrister of the Year for 2015.

The Lawyer Monthly Legal Awards recognise the achievements of law firms and individuals who have delivered exceptional results for their clients over the past 12 months. The awards are divided into individual and firm categories and have been carefully chosen to reflect the range of practice areas and skills that lie at the heart of the successful law firm or legal department.

The full list of winners can be found by here.

John's Property CV can be found here.

St Philips Chambers are proud to announce that we have been shortlisted for “Chambers of the Year” at this year’s Yorkshire Lawyer Awards. This accolade comes after just a year of opening in Leeds following its two year strategic alliance and subsequent merger with local chancery and commercial specialists, Chancery House Chambers. Head of St Philips, Avtar Khangure QC, said "A tremendous amount of work from both parties went into making this merger work; and work so successfully. It's great that this has been recognised by the local legal community in this way".

The winners will be announced at a glittering awards ceremony at New Dock Hall, Leeds on Wednesday 22nd October 2015.

This article was first published on Lexis®PSL on 22nd July 2015. Click for a free trial of Lexis®PSL.

This article discusses the recent High Court decision in relation to the Credit Institutions (re-organisation and winding-up) Regulations 2004 and whether they prevented the Claimant, Tchenguiz, from bringing a claim against the Iceland Bank, Kaupthing, in England when it was barred from bringing the claim in Iceland.  In the alternative, Kaupthing argued that the the English Court did not have jurisdiction on the basis that the exceptions at paragraph 1(2)(b) of the Lugano Convention applied.

The article can be found here.

Monday, 20 July 2015 00:00

Test for Annulling Bankruptcy Settled

In Re Russell Ian Payne; Woolsey v Payne & anor [2015] EWHC 968 (Ch), Mr John Male QC, sitting as a deputy High Court judge, considered the test to be applied when a bankrupt applies to set aside a bankruptcy order on the basis that the petition debt was not due. There were conflicting authorities on the point. The deputy judge held that the bankrupt need only show that there was a genuine triable issue.

The Statutory Scheme

Under section 282(1)(a) of the Insolvency Act 1986 (IA 1986), the court may annul a bankruptcy order “if it at any time appears to the court... that, on any grounds existing at the time the order was made, the order ought not to have been made”.

The court's task on such an application is three-fold. First, the court should identify the relevant grounds existing at the order was made. Second, the court should consider whether on those grounds the order ought not have been made. Third, the court should consider whether, in its discretion, it should annul the bankruptcy order.

A bankrupt might argue that the bankruptcy order should not have been made for a number of different reasons. He might allege that the petition debt was not due, that the petition was an abuse of process or that the petition ought to have been dismissed in the court's discretion.

Where the bankrupt's case is that the petition debt was not due, what does he have to show? Until recently, there were two conflicting authorities on this point. In Guinan III v Caldwell Associates Ltd [2004] EWHC 3348 (Ch); [2004] BPIR 531, Neuberger J said that it was common ground that the correct question was whether there was a genuine triable issue. In Flett v HMRC and Daley [2010] EWHC 2662 (Ch); [2010] BPIR 1075, Mr Anthony Elleray QC, sitting as a deputy High Court judge, held that the bankrupt had to establish on the balance of probability that the debt was not due.

The Facts

Mr Woolsey lent money to Mr and Mrs Payne, who did not comply with the terms of the loan and made repayments only sporadically. Mr Woolsey served statutory demands on both Mr and Mrs Payne. They did not respond. Two months later Mr Woolsey petitioned for Mrs Payne's bankruptcy. She did not respond to the petition and was made bankrupt. Some months later, Mr Payne applied to set aside the statutory demand served upon him and Mrs Payne applied for the annulment of her bankruptcy. Their case was that the loan agreement failed to comply with various provisions of the Consumer Credit Act 1974 and was therefore unenforceable. In response, Mr Woolsey argued that the loan was exempt from the Consumer Credit Act either under section 16B or section 74.

At first instance, Chief Registrar Baister found in favour of Mr and Mrs Payne. He held that each of them needed to show there was a genuine triable issue as to the existence of the debt and that they had succeeded in showing this. The deputy judge upheld this decision. In doing so, he considered the conflicting decisions in Guinan and Flett and held that Guinan was to be preferred. He rejected Mr Woolsey's submissions that an applicant for an annulment should have to pass a more stringent test because (1) he could have made his argument at the statutory demand or petition stage and (2) an application for an annulment can be made at any time and is effective against the whole world. He held that it was desirable that the height of the hurdle the debtor has to negotiate should be the same at whatever stage he mounts his challenge.

Implications

Payne should now be followed at first instance: Colchester Estates (Cardiff) v Carlton Industries Plc [1986] Ch 80. It remains to be seen whether the decision leads to an increase in the number of applications to annul.

Prospective applicants should bear in mind that showing that there is a genuine dispute as to the petition debt does not guarantee success. The court has a discretion whether to grant an application to annul. Debtors who deliberately or inexcusably do not challenge statutory demands and bankruptcy petitions run a serious risk that relief will be refused.

Monday, 08 June 2015 00:00

Masters v Furber [2014] BPIR 263

Masters v Furber [2014] BPIR 263. Decision of HHJ Purle QC that a supervisor of an IVA could, relying in part on a Power of Attorney in his favour, obtain a mandatory injunction requiring the debtor to comply with the terms of the arrangement in relation to the realisation of certain motor vehicles for the benefit of creditors as a whole.

Reported at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/3023.html

James Morgan

Monday, 08 June 2015 00:00

Casa Estates Ltd [2014] BCC 269

Re Casa Estates Ltd [2014] BCC 269. Decision of the Court of Appeal (on a second appeal) as to the meaning and effect of the "cash flow" and "balance sheet" insolvency tests in s.123 of the Insolvency Act 1986 following the decision of the Supreme Court in Eurosail.

Reported at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/383.html

James Morgan

Top Brands v Sharma [2014] EWCA Civ 761. Decision of the Court of Appeal on an expedited appeal upholding the first instance judge that a former liquidator had no standing to challenge the status of the applicants as creditors, thereby meaning that their misfeasance claim against the former liquidator should proceed.

Reported at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/761.html

James Morgan