Oury Clark Blog

• Elliot GreencloseAuthor: Elliot Green Name: Elliot Green ACA MABRP
  Email: Elliot.Green@ouryclark.com
  Site: http://ouryclark.com/insolvency/partners
  About: With an interest in the field of insolvency that was already well-developed when he qualified as a Chartered Accountant in 1999, Elliot has concentrated almost exclusively on under-performing business ever since and is now also a Licensed Insolvency Practitioner. Elliot enjoys an outstanding reputation for his facility with the forensic aspects of insolvency work, although his commitment to the “Rescue Culture” ensures that his goal remains to ensure the survival of the business wherever possible. When not working, Elliot is often to be found indulging his love and enjoyment of sport of many varieties, generally from a suitably comfortable vantage point. However, as a keen supporter of Manchester United he has, from time to time, been known to brave the elements for the right cause.See Authors Posts (48)

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

There is much discussion at the moment regarding the remuneration of insolvency practitioners with some commentators even suggesting an independent body to oversee and review the same.

Part of the problem appears to be that of perception, where an insolvency practitioner (“IP”) records time spent on an insolvent estate with the same subject simply to historical approval in principle from creditors. The IP is then able to write a cheque out accordingly for the time costs incurred. In reality there are procedures and checks which prevent it from being quite so straight forward but the apparent inability of the creditors (who are the ultimate clients) from in effect withholding the money because it is controlled by the insolvency practitioner does separate us from many other [...]

• Elliot GreencloseAuthor: Elliot Green Name: Elliot Green ACA MABRP
  Email: Elliot.Green@ouryclark.com
  Site: http://ouryclark.com/insolvency/partners
  About: With an interest in the field of insolvency that was already well-developed when he qualified as a Chartered Accountant in 1999, Elliot has concentrated almost exclusively on under-performing business ever since and is now also a Licensed Insolvency Practitioner. Elliot enjoys an outstanding reputation for his facility with the forensic aspects of insolvency work, although his commitment to the “Rescue Culture” ensures that his goal remains to ensure the survival of the business wherever possible. When not working, Elliot is often to be found indulging his love and enjoyment of sport of many varieties, generally from a suitably comfortable vantage point. However, as a keen supporter of Manchester United he has, from time to time, been known to brave the elements for the right cause.See Authors Posts (48)

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

This is a case in which as Liquidator, I applied to the Court for relief that the granting of a charge at a relevant time in favour of the Respondent was a Preference under Section 239 of the Insolvency Act 1986. I succeeded in obtaining a declaration that a preference had arisen and compensatory relief accordingly was awarded.

The case was interesting in being consistent with the rationale in Re MC Bacon Ltd [1990] BCC 78, it was held that a preference occurred at the point in time when it was decided that the charge was to be granted, not when the charge necessarily was granted in favour of the Respondent.

The Respondent’s case in part relied upon an email exchange relating to the charge which did [...]

• Elliot GreencloseAuthor: Elliot Green Name: Elliot Green ACA MABRP
  Email: Elliot.Green@ouryclark.com
  Site: http://ouryclark.com/insolvency/partners
  About: With an interest in the field of insolvency that was already well-developed when he qualified as a Chartered Accountant in 1999, Elliot has concentrated almost exclusively on under-performing business ever since and is now also a Licensed Insolvency Practitioner. Elliot enjoys an outstanding reputation for his facility with the forensic aspects of insolvency work, although his commitment to the “Rescue Culture” ensures that his goal remains to ensure the survival of the business wherever possible. When not working, Elliot is often to be found indulging his love and enjoyment of sport of many varieties, generally from a suitably comfortable vantage point. However, as a keen supporter of Manchester United he has, from time to time, been known to brave the elements for the right cause.See Authors Posts (48)

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

Unless there is good reason shown to the contrary it was largely considered that Section 123(2) of the Insolvency Act 1986 was in effect a balance sheet test for solvency, being one of the two possible tests with the other being a liquidity test of whether you are able to discharge your debts as and when they fell due for paymennt.

The case BNY Corporate Trustee Services Ltd v Eurosail [2011] EWCA Civ 227 has thrown a spanner into the works in which it was held that Section 123(2) of the Insolvency Act 1986 cannot necessarily be based on an accounting excercise such as where financial statements have been prepared in accordance with UK GAAP. The test can now involve a degree of judgment in assessing [...]

• Elliot GreencloseAuthor: Elliot Green Name: Elliot Green ACA MABRP
  Email: Elliot.Green@ouryclark.com
  Site: http://ouryclark.com/insolvency/partners
  About: With an interest in the field of insolvency that was already well-developed when he qualified as a Chartered Accountant in 1999, Elliot has concentrated almost exclusively on under-performing business ever since and is now also a Licensed Insolvency Practitioner. Elliot enjoys an outstanding reputation for his facility with the forensic aspects of insolvency work, although his commitment to the “Rescue Culture” ensures that his goal remains to ensure the survival of the business wherever possible. When not working, Elliot is often to be found indulging his love and enjoyment of sport of many varieties, generally from a suitably comfortable vantage point. However, as a keen supporter of Manchester United he has, from time to time, been known to brave the elements for the right cause.See Authors Posts (48)

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

In Green v Bramston & Ors [2010] EWHC 3106 (Ch) (02 December 2010) the principles set out in Berleley Applegate (Re Berkeley Applegate (Investment Consultants) Ltd [1989] 1 Ch 32) were considered.

The case was notable as a dispute between two insolvency practitioners and in which the Trustee’s investigation costs relating to the beneficial interest in trust assets did not form part of the order for indemnity granted by the court.

It was held that where trust assets were realised by the Trustee in Bankruptcy, that the costs and expenses incurred were recoverable from those trust assets.

The full judgment can been seen at http://www.bailii.org/ew/cases/EWHC/Ch/2010/3106.html

• Elliot GreencloseAuthor: Elliot Green Name: Elliot Green ACA MABRP
  Email: Elliot.Green@ouryclark.com
  Site: http://ouryclark.com/insolvency/partners
  About: With an interest in the field of insolvency that was already well-developed when he qualified as a Chartered Accountant in 1999, Elliot has concentrated almost exclusively on under-performing business ever since and is now also a Licensed Insolvency Practitioner. Elliot enjoys an outstanding reputation for his facility with the forensic aspects of insolvency work, although his commitment to the “Rescue Culture” ensures that his goal remains to ensure the survival of the business wherever possible. When not working, Elliot is often to be found indulging his love and enjoyment of sport of many varieties, generally from a suitably comfortable vantage point. However, as a keen supporter of Manchester United he has, from time to time, been known to brave the elements for the right cause.See Authors Posts (48)

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

A lawyer once said to me “there is a risk with any piece of litigation” and like death and taxes this is another of life’s certainties for those who embark upon or seek redress through the courts.

Article 6 of the Human Rights Act 1998 certainly provides us all with the opportunity of being able to use the courtroom to seek redress where we are aggrieved – but at what cost? If a claim is less than £5,000 then the risk is much reduced.

However, if you are pursuing a claim over £5,000 then the risk of adverse costs (having to pay your opponent’s legal costs) is very real, especially if you lose.

Many claims that end up in court are driven by us having a point of [...]