COVID-19 - Latest update

Insolvency work during the COVID-19 Pandemic

6 April, 2020

BRINGING THE GUIDANCE TOGETHER

TEMPORARY INSOLVENCY PRACTICE DIRECTION
A temporary insolvency practice direction came into force on 6 April 2020. It will remain in force until 1 October 2020 unless amended or revoked in the meantime.

It contains a useful summary which we reproduce below. Please click here for the link to the Dear IP Letter setting out the details.

Filing notice of intention to appoint an administrator and notice of appointment of an administrator
Paragraph 3 of the TIPD deals with filing notice of intention to appoint and notice of appointment of an administrator. A different practice will apply depending on whether the notice or appointment is made by a qualifying floating charge holder or a by company or its directors.

First and subject to exceptions, the TIPD provides that where a company or director or a qualifying floating charge holder uses CE-file to give notice of an intention to appoint or notice of appointment of an administrator, the notice will be treated as delivered to the court on the date and at the time recorded in a filing submission email. This is intended to reduce any uncertainty as to timing.

Secondly, the TIPD reflects the policy in the Insolvency Rules 2016 as regards filing notices by a company or director by CE-file. If a filing submission email attaching a notice of appointment of an administrator is sent outside the time period 10:00 hours to 16:00 hours on any day that the courts are open for business, the notice shall be treated as delivered to the court at 10:00 hours on the day that the courts are next open for business. Similarly, if a filing submission email attaching a notice of intention to appoint an administrator is sent outside the time period 10:00 hours to 16:00 hours on any day that the courts are open for business, the notice shall be treated as delivered to the court at 10:00 hours on the day that the courts are next open for business. This is important for the purpose of knowing when the ten-day period in paragraph 28(2) begins. It will be the date on which the courts are next open for business.

Thirdly, all notices filed by CE-file shall continue to be reviewed by the Court, as and when practicable, in accordance with paragraph 5.3 of PD510. The validity and time at which the appointment of an administrator is effective shall, however, not be affected by reason only of any delay in acceptance of the notice.

Fourthly, users are reminded that the procedure in Rule 3.20-3.22 in respect of qualifying floating charge holders still applies, and Electronic Working may not be used to file a Notice of Appointment of an administrator under paragraph 14 of Schedule B1.

Remote hearings
The TIPD (paragraph 6) confirms what is already reality, that insolvency hearings will generally continue to be conducted remotely.

Pending petitions and applications
Pending applications and petitions (except for winding up and bankruptcy petitions) listed for hearing before 21 April 2020 will be adjourned and relisted in accordance with procedures set out in the TIPD. Special provision is made for matters that need to be dealt with on an urgent basis. Further relisting guidance is envisaged, details of which will be available on the internet.

Winding up and bankruptcy petitions
Winding up and bankruptcy petitions will continue to be heard but will be dealt with by remote hearing in batches.

Urgent hearings
Detailed guidance is given on how to obtain an urgent hearing before a Chancery or ICC judge (paragraph 5).

Non-London business
The TPID deals with business throughout the Business and Property Courts (save for the treatment of petitions), subject to any modifications provided for in separate guidance issued by the supervising judge for the relevant court centre.

Statutory declarations
Provision is made for statutory declarations to be made by video conference (paragraph 9).

 

OTHER PRACTICE DIRECTIONS & GUIDANCE

The HMCTS webpage with the Practice Directions and guidance can be accessed here.

 

Three Stone remains open for business. For details of how we have adapted our practices to ensure we continue to be able to provide our usual high standards of service, please click here.


E-bulletin Reminder: Changes to Statement of Truth

5 April, 2020

A reminder amidst the many changes to our lives…

With effect from 6 April 2020, the wording of the Statement of Truth required by CPR Part 22 will change.

The form of words verifying a document other than a witness statement should be:

[I believe] [The party believes] that the facts stated in this [document] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief if its truth.

The form of words verifying a witness statement should be provided in the language of the witness and should be:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.  

Statements of truth must be dated with the date on which they are signed.

Three Stone remains open for business during the Covid-19 Pandemic. For details of how we have adapted our practices to ensure we continue to be able to provide our usual high standards of service, please click here.   

Three Stone
The Chambers of John McDonnell QC
3 Stone Buildings
Lincoln’s Inn
London WC2A 3XL

+44(0)20 7405 4937
clerks@threestone.law

 

This e-bulletin should not be relied upon as legal advice


Coronavirus (COVID-19) – latest update

27 March, 2020

Three Stone have taken immediate measures to maintain our impressive chancery commercial services and our clerking team will provide their usual high standard of service whilst ensuring the safety of our clients, staff and members during this dynamic period.

Government guidance
We are following the Government’s guidance in response to the current Coronavirus-COVID-19 situation, and the relevant Protocols issued by the Lord Chief Justice which can be found here.

We can provide detailed advice on the nature and effect of these latest and all other provisions including the Coronavirus Act 2020

Wellbeing
Our priorities remain to ensure the continued wellbeing of our staff, members and clients; and that our service to clients is affected as little as possible while the current situation continues.

Services – representation at courts and advice
We are continuing to provide our usual services to our clients within the guidance of the government and the chief medical officer.

Consequently we have decided to close our premises, but all staff and members continue seamlessly to work from home. We are all monitoring telephones and responding to emails as usual.

We will continue to liaise effectively with the Courts, parties and clients to ensure that all hearings take place safely and justly.

Our facilities for communications and video conferencing (internally and externally) are operating very effectively for hearings and conferences. Please contact our clerks for assistance and information.

Documents/instructions/bundles
Post and DX deliveries will be collected securely. Solicitors and others wishing to instruct members of chambers should please enquire in the usual way initially by telephone or email to our clerks, and send papers in electronic form either as an email attachment or by cloud based transfer. If this is not possible safe means of collection and delivery exist and can be provided on request.

Payment
We ask that all fee notes be paid by bank transfer where possible but we are able to receive payment by cheque.

Contacts
If you have any questions or would like to discuss other arrangements please contact

Tel: +44 (0)20 7242 4937
Email: clerks@threestone.law


Coronavirus (COVID-19)

18 March, 2020

Like all businesses, we are closely following the Government’s guidance in response to the current COVID-19 / Coronavirus situation. We have reviewed our standing Business Continuity Plan and added specific provisions to enable us to minimise disruption to our business and our service to clients in the event of further escalation.

For the time being we are adopting a business as usual approach in line with current guidance and ensuring that all our staff are aware of the advice on steps which should be taken to minimise the risk of infection reaching or spreading within our offices.

Our plans in the event of further escalation have been communicated to all our staff and are being kept updated as Government guidance develops. Most of our barristers are able to work from home should the need arise and we have contingency plans which would enable us to increase the number able to do so if necessary. We are also able to use video conferencing (internally and externally) and other technology to avoid the need for travel and face to face meetings.

Our priorities are to ensure the wellbeing of our staff and visitors to our office and to ensure that our service to clients is affected as little as possible while the current situation continues.

The latest official government advice can be viewed here.

If you have any questions or would like to discuss alternative arrangements for contacting us instead of meeting face to face, please speak to those handling your matter or call us on:

Tel: +44 (0)20 7242 4937
Email: clerks@threestone.law


Oxford University establishes two prizes in the name of Professor Subedi QC

17 March, 2020

The University of Oxford has established two academic prizes in the name of Professor Surya P. Subedi QC, OBE, DCL to honour outstanding performance by its law students.  The first is the Dr Surya Subedi Prize in Human Rights Law to be awarded to the student attaining the highest mark in the paper in Human Rights Law each year.

The second is a new prize, the Dr Surya Subedi Prize for the DPhil in Law to be awarded to the best doctoral thesis in the Oxford Faculty of Law each year. The DPhil prize will be awarded to the thesis that makes the most exciting original contribution to the relevant field of scholarship and is best crafted in terms of organisation, style and presentation. All doctoral students in the Faculty of Law, including in Criminology and Socio-Legal Studies, will be eligible for the award of the prize.

Professor Subedi is an alumnus of Oxford. He obtained a doctoral degree (DPhil) in Law with a prize in 1993. Oxford awarded him a higher doctorate – the degree of Doctor of Civil Law (DCL) – in 2019 in recognition of his outstanding contribution to the development of human rights and international law. Such higher doctorates are awarded rarely and only in exceptional cases at the University of Oxford.

He was called to the Bar of England at Middle Temple in 2007 and made a QC (Hon) in 2017.

Professor Surya P. Subedi QC

ssubedi@threestone.law


Recent Developments in Commercial Law

9 March, 2020

Three Stone Chambers held a seminar last Wednesday 4 March at the Ashworth Centre, Lincoln’s Inn, London. The speakers included:

It was chaired by Katherine Hallett.
The full programme is available to download here.

Speaker: David Mohyuddin QC
Speaker: James Woolrich

                            

For any questions please contact our clerks.


Three Stone Seminar: Recent Developments in Commercial Law

23 January, 2020

Three Stone Chambers are giving a presentation on ‘Recent Developments in Commercial Law’:

  • “ I knew you’d been lying!” – Setting aside judgments obtained by fraud
    David Mohyuddin QC
  • “ Is it a bribe or not a bribe: that is the question” – An exploration of the current law on secret commissions in light of Wood v Commercial First Business Limited (2019)
    Stuart Cutting
  • Chabra orders – hot tips on freezing third party assets”
    James Woolrich

The seminar will be chaired by Katherine Hallett.

Date:        Wednesday 4 March 2020, 6.00pm for 6.30pm start (1 CPD)
Location: Ashworth Centre, Lincoln’s Inn, London. WC2A 3TL
RSVP:       clerks@threestone.law

The programme is available to download here.


Inheritance Tax and the liability of Personal Representatives

6 January, 2020

Stephen Woodward recently presented a webinar for SG Legal Conferences and Online Learning (Simon Gore Consulting Ltd) entitled “Inheritance Tax and the liability of Personal Representatives – Who ends up paying?”.

Areas covered included:
• The distinction between liability to and burden of Inheritance Tax;
• Liability to Inheritance Tax for lifetime and on death transfers of value;
• Limitations on liability to Inheritance Tax – how much PR’s, Trustees and individuals be liable for and priority of liability between different persons each liable for the same tax;
• The burden of Inheritance Tax – Who ends up paying ?
• Practical problems for PRs of deceased transferors and transferees;
• Practical protection for PRs

 

Stephen Woodward
swoodward@threesone.law


Toone v Ross

13 November, 2019

[2019] EWHC 2855 (Ch)

Summary

This decision of Chief Insolvency and Companies Court Judge Briggs deals with a challenge to the use of employee benefit trusts (EBTs) and an interest in possession fund (IIP). The company entered into two EBTs and one IIP. They were challenged by the company’s liquidators as being, in substance, distributions of capital which were made without the company having complied with the relevant formalities required by Part 23 of the Companies Act 2006. Allegations of breach of duty and that the transactions defrauded creditors were also made.

The court concluded that, looking through the eyes of the company, the payments made under the EBTs and the IIP were to be characterised as returns of capital to shareholders. The formalities not having been complied with, they were unlawful. The allegation of breach of duty also succeeded. The directors were required to account to the company for the sums paid away.

Comment

This is one of the first decisions directly concerning challenges by liquidators to the actions of directors (who are also shareholders) in causing their company to enter into EBTs and other arrangements perceived to have advantageous taxation consequences. It addressed how payments made in pursuance of such arrangements are properly to be characterised (although future cases will turn on their own facts). It involved consideration of the trigger for the creditors’ interests duty as explained in BTI 2014 LLC v Sequana SA [2019] EWCA Civ 112. This decision should be considered alongside that of Insolvency and Companies Court Judge Jones in Re Vining Sparks UK Limited; Allen v Bernard [2019] EWHC 2885 (Ch).

David Mohyuddin QC

dmohyuddin@threestone.law


Avon Ground Rents Limited v (1) Cowley & others (2) Metropolitan Housing Trust

29 October, 2019

Avon Ground Rents Limited v (1) Cowley & others (2) Metropolitan Housing Trust (3) Advance (4) May Hempstead Partnership

[2019] EWCA Civ 1827

The question raised in this appeal was whether, when a landlord proposes to carry out works, the total cost of which is reasonable, but there is the possibility that a third party will contribute to those costs, in assessing the residential service charge payable in advance, does section 19(2) of the Landlord and Tenant Act 1985 require the landlord (depending on the facts of the case) to give credit for the anticipated third party contribution when assessing a reasonable advance payment or are third party contributions only to be taken into account once they are actually received ?

In this case, which related to major repairs required to a mixed-use commercial/residential development, a claim had been made under NHBC insurance schemes. Liability in principle was admitted prior to the issue of service charge demands, however the service charge demands issued to the tenants, both residential and commercial, were based on the full cost of the works.

The First Tier Tribunal concluded that the landlord should give credit for the anticipated receipt of insurance monies and determined that a reasonable advance payment would be the amount of the excess payable by the tenants under the policies. The Upper Tribunal upheld the decision.

The Court of Appeal (McCombe LJ, Coulson LJ, Nicola Davies LJ), dismissing the further appeal, held that the Upper Tribunal had been correct to conclude that whether an amount is payable in advance is not generally to be determined by the application of rigid rules but must be assessed in the light of the specific facts of the case. The wording of section 19(2) of the 1985 Act is intended to allow for flexibility. What is reasonable is a question for the relevant tribunal to determine, taking into account all relevant circumstances as they exist at the date of the hearing giving such weight to the various factors as it considers just and reasonable. The question as to whether the possibility of third-party payments can be taken into account in deciding what might reasonably be demanded on account will depend on the facts of the individual case. If certainty were to be required, this would constrain the discretion of the tribunal. The purpose of the statutory provision is to protect tenants from unreasonable demands. Where, as here, there exists an anticipated schedule of works, the total cost of which is reasonable and there is a possibility of a third party making a contribution to those costs, in assessing the residential service charge payable in advance of those works, the landlord does have to give credit for the anticipated third party payment.

Timothy Clarke of Three Stone appeared for the Second Respondent, Metropolitan Housing Trust.

Timothy Clarke

timclarke@threestone.law


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