Oury Clark Blog

Insolvency Fees

Elliot Green — Wed, 08 Jun 2011 15:37:49 +0000

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 [...]

Green v Ireland [2011] EWHC 1305 (Ch) (20 May 2011)

Elliot Green — Tue, 24 May 2011 11:37:29 +0000

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 [...]

The end of the balance sheet test for solvency?

Elliot Green — Mon, 09 May 2011 09:09:14 +0000

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 [...]

Green v Bramston & Ors [2010] EWHC 3106 (Ch) (02 December 2010)

Elliot Green — Mon, 31 Jan 2011 08:19:03 +0000

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

Litigation – is it worth it?

Elliot Green — Fri, 10 Dec 2010 13:43:53 +0000

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 [...]

UK Digital New Media – the edges

James Oury — Thu, 11 Nov 2010 18:58:39 +0000

I had the privilege this week at the HM Consul General’s residence in San Francisco to share commercial views with the edge of UK digital new media offerings – from emotional response film run led by Gawain Morrison (www.filmtrip.tv) to brand messaging within Twitter, facebook and blogs led by Nessa Bird (www.rubber republic.com) – stunning creative talents

Should Insolvency Practitioners not go on fishing expeditions?

Elliot Green — Sat, 06 Nov 2010 05:24:15 +0000

As Liquidator or Trustee in Bankruptcy I enter my office as a stranger and I frequently encounter many bankrupts and former company directors (and sadly their professional advisers) who are not tremendously forthcoming with information that I reasonably require for the furtherance of my investigations into the insolvent’s affairs, dealings and property.

When seeking the files of accountants and even solicitors who the insolvent may have instructed, a not uncommon attempt to derail this process is for advisers to allege that I might be on something of a fishing expedition. Comments may even extend to you are looking for creatures in ponds that you do not even know exist! Naturally I do not know if those so-called creatures exist – I was not there at the relevant [...]

Hooper v Duncan Lewis (Solicitors) Ltd & Ors [2010] BPIR 591

Elliot Green — Sat, 06 Nov 2010 03:37:21 +0000

The ability of the Trustee in Bankruptcy or Liquidator to apply to Court for orders of disclosure and private examination is a powerful weapon in the armoury of an Insolvency Practitioner (“IP”), seeking to unravel the financial affairs of a bankrupt or a company particularly given an IP usually enters his or her office as a stranger.

What was interesting about this case was that such orders are more often than not utilised to seek information from a bankrupt or a former company director who have mandatory statutory obligations to assist the IP in the execution their duties.

In the matter of Hooper v Duncan Lewis (Solicitors) Ltd & Ors [2010] BPIR 591 (“Hooper”) the Trustee in Bankruptcy sought disclosure of solicitors’ files, not of the bankrupt [...]

DNA Electronics partners with Roche

James Oury — Mon, 01 Nov 2010 19:00:51 +0000

The pathway to affordable genetic diagnostic tools has been accelerated with the announcement today of a partnership between our client company, DNA Electronics Limited and 454 Life Sciences, a Roche Company. the merger of molecular life sciences and CMOS semiconductor is truly a disruptive advancement for global healthcare.

Preference or invalid set-off: which is it?

Elliot Green — Sun, 31 Oct 2010 02:51:04 +0000

Preferences are defined in Section 239 of the Insolvency Act 1986 and arise when one creditor is placed into a better position to that of another, when an individual or a company enters into a formal insolvency procedure.

The precise timescales and circumstances for a Preference are outside the scope of this post but the leading case on Preferences is Re MC Bacon Ltd [1990] BCLC 324 for more detailed consideration of the rules.

This post is seeking to consider the relationship between a Preference and invalid set off for director’s loans in the context of an insolvent company.

A rather common preference scenario is where a company director lends a sum of money to fund their business which at some point enters into decline. Upon the realisation [...]

Utah Innovation and Integrity

James Oury — Sat, 30 Oct 2010 21:15:27 +0000

It was a privilege to sit next to our client Jon Pexton, CFO for Interbank Fx the 5th fastest growing Utah technology company at the Utah Technology Council Hall of Fame Celebration. Interbank FX have innovated and focus on excelling in the independence and integrity of it’s client relations similar to one of the inspiring inductees, Dale H. Ballard whose contribution to disposable medical innovation matched with his care and integrity remains unrivalled.

Nanotechnology – an enabling technology

James Oury — Fri, 22 Oct 2010 18:08:46 +0000

My day has been elevated with the involvement in a new project emanating from the medical corridors of excellence in Houston – the use of nanotechnology in a drug delivery system designed to potentially internally release drugs to pancreatic cancer patients – this truly is a platform, enabling technology of significant potential.

DNA Electronics – ION Torrent Systems – Life Technologies

James Oury — Fri, 20 Aug 2010 10:18:28 +0000

I am very proud that the firm has been involved in DNA Electronics, a spin out company from Imperial College that recently announced a non-exclusive licensing arrangement with ION Torrent Systems which this week has agreed terms to be acquired by a NASDAQ listed company, Life Technologies. It is a privileged position to be in, in being associated with excellence in UK Research and Development being commercialised in a highly competitive global market.

Go Goodman Go

James Oury — Fri, 23 Jul 2010 09:21:48 +0000

I have just visited the senior management team of our client’s Headquarters in Minneapolis, the Goodman Group (http://www.thegoodmangroup.com/), who have developed a highly professional assisted living business. They have mature UK market entry plans. The communities are beautifully built, staffed by highly trained professionals and bring a much needed dimension to senior living healthcare.

I wanted to book in there and then but was told I needed to be 85, Dan Peterka (CEO) said he would take an early reservation!

I am excited at the prospect of elderly care being delivered in the UK in a highly sophisticated, dignified and humane fashion – go Goodman go I say.

It’s good to talk

Ian Friend — Thu, 22 Jul 2010 13:03:36 +0000

An employer provided mobile phone (contract in employer’s name) is tax free, including all calls and line rental. One per employee only!

Money paid towards the employee’s own mobile phone is taxable.

On your bike?

Ian Friend — Thu, 22 Jul 2010 12:56:20 +0000

You can loan, without a taxable benefit arising, a bicycle and/or cyclist’s safety equipment so long such bicycles and equipment are available generally to employees and the main use of the bicycle is for journeys between home and work or between workplaces.

You can even celebrate and offer a meal or refreshments on a designated “cycle to work” day.

Suggestions please

Ian Friend — Thu, 22 Jul 2010 12:49:49 +0000

Would you dare ask your staff for suggestions?

You can reward, without a taxable benefit arising, those making sensible suggestions. HMRC provide tax exemption for two types of award:

Encouragement awards – made for a suggestion which has some special merit or reflects priaseworthy effort on the part of the person making the suggestion. The permitted tax free maximum for an encouragement award is £25. Financial Benefit Awards – can only be made following a decision to implement the suggestion, awards must be based upon improvement in efficiency or effectiveness to be achieved and, subject to some financial restrictions, the tax free award cannot exceed £5000.

By the way the sun doesn’t generally shine as much as any of us would like!

Been here long?

Ian Friend — Wed, 21 Jul 2010 20:11:05 +0000

Long service awards to directors and employees as testamonials to mark long service awards where service is not less than 20 years (and no similar award has been made within the previous 10 years!) are exempt so long as they are:

Tangible articles of reasonable cost, or shares in an employing company (or group company)

Reasonable, in this context, means that it does not exceed £50 for each year of service.

“But Liz, I hear that Tandems are all the rage…”

Having your crispy pancakes and eating them

Ian Friend — Wed, 21 Jul 2010 19:51:36 +0000

then best to do so abroad!

The cost of necessary medical treatment abroad paid by you as employer, or reimbursed to your staff, is exempt so long as the employee did fall ill or suffer injury whilst away from the United Kingdom in the performance of their duties.

Chop stick injury?

Getting Indigestion?

Ian Friend — Wed, 21 Jul 2010 19:45:49 +0000

Why not send your employees for a Health Screening Assessment or a medical check-up?

There is no benefit, …..cough Mr Orborne…so long as you only provide a maximum of one health screening assessment and one medical check-up in any year.

This exemption does not cover medical treatment.