Phillip Gale

Insolvency litigation forms a major part of Phillip’s practice.

Phillip has extensive experience of claims involving misfeasance, transactions at an undervalue, preferences, transactions defrauding creditors and wrongful trading. He has particular knowledge of “hybrid” proceedings requiring a Part 7 claim form and an insolvency application (e.g. Manolete v Bell [2024] EWHC 1636 (Ch)) and the procedural issues these can throw up.

Phillip often acts for officeholders (or litigation funders) where the insolvent company and its creditors have been the victim of fraud. For example, he has obtained search and freezing orders against directors of a company involved in a labour supply fraud. He has successfully defended another such freezing order (concerning an underlying £12m VAT fraud) against a sustained discharge application (Rajah J – 19 February 2024). Phillip also appeared in the Court of Appeal (together with Christopher Brockman) in a case setting out the circumstances in which an office holder will be able to obtain a freezing order against a limited cross-undertaking in damages: Hunt v Ubhi [2023] EWCA Civ 417; [2023] Bus LR 1827.

Phillip also has experience of cases where appointments (or pre-appointment petitions/applications) become contested or give rise to knotty problems. For example,

On the bankruptcy side, Phillip obtained (in May 2024) a bankruptcy order against Pragnesh Modhwadia, alleged to have misappropriated £57 million from the client account of the successor firm to Ince & Co. He has a track record in reported cases on some of the more technical aspects of bankruptcy (see Significant Cases below) including a rare example of successfully setting aside a matrimonial consent order as a transaction at an undervalue. Phillip also has particular experience of bankruptcy proceedings where there are mental capacity issues relating to the debtor.

On the bankruptcy side, Phillip acted for the successful trustee in setting aside a matrimonial consent order as a transaction at an undervalue (Green v Austin [2014] BPIR 1176) and has particular experience of mental capacity issues arising in the context of bankruptcy proceedings (for example, De Toucy [2011] EWHC 3809 (Ch); [2012] BPIR 793. He also acted for the successful trustee in an application for possession and sale where permission was given for a second appeal to the Court of Appeal on the proper test to be applied when a party failed to attend trial (for the first appeal, see Roberts [2016] EWHC 187 (Ch); [2016] BPIR 996; for the Court of Appeal (on a procedural point only) see [2018] EWCA Civ 569). Phillip recently acted in connection with a proposed IVA with creditor claims of over £150 million.    

Phillip’s property practice frequently overlaps with his insolvency work. Property is often a significant asset within an insolvent estate and there is an obvious advantage in one counsel being able to advise on both aspects of any problem or dispute. For example (and as noted above), in Prime Noble, Phillip acted for the joint administrators of a company which had a long lease of an abandoned development of 119 flats. The administrators made various applications to unlock the complex series of property and security interests over the site to enable a sale of a clean title and a return to creditors and investors. Another example is possession and sale applications by trustees in bankruptcy; Phillip is regularly instructed where problems about equitable accounting, equity of exoneration, common intention constructive trusts or proprietary estoppel arise.

Phillip also advises and appears in pure property disputes where there is no insolvency background, in cases involving easements and covenants, trespass and nuisance, registration problems, TOLATA and possession claims, beneficial interest disputes and proprietary estoppel claims. For example, he has recently advised a lender which refinanced a housing development in southeast London whether any sums were due under an overage agreement registered against the freehold title and if so whether the lender was entitled to be subrogated to the rights of the original lender whose charge had been extinguished on the refinance.

Phillip is a commercial chancery barrister dealing with a wide variety of commercial and contractual disputes.

Recent cases have involved a variety of fraud claims, warranty claims under a share purchase agreement and guarantees. He has obtained search and freezing orders against directors of a company involved in a labour supply fraud and successfully defended another such freezing order (concerning an underlying £12m VAT fraud) against a sustained discharge application (Rajah J – 19 February 2024). Phillip appeared in the Court of Appeal (together with Christopher Brockman) in a case setting out the circumstances in which an insolvency office holder will be able to obtain a freezing order against a limited cross-undertaking in damages: Hunt v Ubhi [2023] EWCA Civ 417; [2023] Bus LR 1827.

Phillip regularly advises on director’s duties and on dividends. He has particular experience of the interaction between derivative claims, unfair prejudice petitions and just and equitable winding up. He recently obtained permission to appeal from the Court of Appeal on the question to what extent a party who was not a director or shareholder or recipient of company property can be made secondarily liable for a share purchase order following the trial of an unfair prejudice petition.