Search Results

You are looking at 1 - 10 of 29 items

  • Series: Elgar Corporate and Insolvency Law and Practice series x
Clear All Modify Search
This content is available to you

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

This opening chapter sets out the objectives and intentions of the book. It summarises the central tenets and key points that will be made in relation to the liabilities of insolvency practitioners, as well as providing an outline of the following chapters. The book is intended to be a useful text and guide for lawyers and accountants, and all those involved in, or advising those who are involved in, the work of administering insolvent estates in England and Wales. Its main purpose is to assist them to assess the risks and opportunities arising in relation to the powers, duties, and liabilities of insolvency practitioners in the conduct of their office. Chapter 1 begins by explaining the categories of office-holder that exist, as well as some of the roles that insolvency practitioners may play in creditor compacts, and outside of their statutory roles.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

Chapter 2 sets out the means by which an individual can become authorised to act as an insolvency practitioner and the framework for dealing with complaints and sanctions, as well as the roles of recognised professional bodies and the Secretary of State in the regulatory environment. The role of insolvency practitioner was first subject to specific authorisation following the introduction of the Insolvency Act 1986. Individuals who wish to act as an insolvency practitioner must be permitted to do so by a recognised professional body, must hold security for the performance of their functions and must not be subject to formal insolvency proceedings themselves or disqualified from acting as a company director. The regulatory framework is designed to protect and promote the public interest through fair competition within the profession and through discipline of insolvency practitioners where their work falls below the required standard.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

Chapter 3 considers the processes by which an individual comes to be appointed as a liquidator, an administrator, a trustee in bankruptcy, a receiver, an administrator receiver, or comes to act as a nominee and then supervisor of a voluntary arrangement or as a monitor. In addition, it also addresses the circumstances in which such an appointment comes to an end, whether, for example, as a result of resignation, termination, or because the underlying insolvency process comes to an end. The Chapter also describes the method of remuneration of insolvency practitioners. In considering all those matters, it sets out the different roles which the various stakeholders (most obviously the debtor entity and its creditors) have in respect of each of those milestone events in the life of an insolvency process, as well as the extent to which it is possible to have recourse to the court to resolve disputes.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

Chapter 4 considers the duties that insolvency practitioners are under. The chapter begins by considering the sources of those duties, before going on to consider how that translates into the practical standard of skill and care that should be applied by office-holders. Chapter 4 also considers the wide (but not unbounded) latitude that is given to office-holders in their decision-making, when those decisions might be impugned by an applicant, and how likely those challenges are to be successful. The Chapter also draws comparisons with the similar duties on directors and trustees. It also conveniently addresses the accounting and disclosure requirements that IPs must comply with, and which are vital to maintaining public trust in the statutory insolvency regime.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

Chapter 5 considers the powers of insolvency practitioners. The chapter considers the statutory source of powers associated with the different office-holders, in both corporate and personal insolvency. The power of office-holders to bring claims and make realisations is considered in further detail. The option for the insolvency practitioner to apply for directions from the court is also considered, as are powers in relation to disclosure and the use of public and private examinations. The Chapter also considers the powers to draw remuneration. It provides the foundation, together with consideration of the duties in Chapter 4, from which to consider the liabilities of office-holders, as set out in Chapter 6.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

The focus of this chapter is an examination of the different situations, or categories, in which an IP may incur civil liability for breach of their duties. The functional context in which an IP is acting is critical for the purposes of assessing the likelihood of a claim arising and the capability of it being sustained. The different potential claimants and types of claim, whether personal or class claims, are considered. The nature of the decision making, as an important step in assessing risk of liability, is considered. Most of the chapter is then taken up with looking at examples where claims have been brought and analysing the factors relevant to their success or failure in the 10 categories identified, which consider an IP’s involvement from pre-appointment through the life of an appointment to its close. The chapter finishes by looking at a brief examination of other sources of liability, namely regulatory and criminal liabilities.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

This Chapter introduces and discusses the main remedies under consideration where an IP has breached their duties. It seeks to do so by reference to the type of obligation which has been breached, which serves as the best guide to the likely remedy available. It briefly considers the further requirements as to causation, which may also be influenced by the nature of the duty breached and the remedy sought, whether restorative or compensatory. The methods used by the courts to measure the appropriate damages, or measure of loss in compensation claims, are also considered, together with a review of the principles in relation to interest on sums awarded. The Chapter concludes by considering the professional indemnity insurance requirements of IPs and the issue of joint and several liabilities, and compensation claims.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

Chapter 8 addresses the position of the IP once a claim is made out. It is therefore to be distinguished from the preceding chapters, where non-liability arises by virtue of an element of the claim being absent, or on the basis that the claim has been brought by a claimant without standing. However, this chapter also addresses the notion of defences more broadly, because it encompasses the variety of responses that an IP may raise when or before a claim is made out against him or her. This includes pre-emptive applications for directions from the court and sanction from creditors. It also addresses the unsettled issues around the application of section 1157 of the Companies Act 2006 to IPs, the defence of illegality, and the recourse an IP may have to a policy of professional indemnity.

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons

You do not have access to this content

Hugh Sims, Rachel Lai, Neil Levy, Stefan Ramel, Holly Doyle, James Hannant and Samuel Parsons