Stephen Davies KC

Whether the test for determining the nature and extent of waiver of legal professional privilege is the same in cases of express waiver and implied waiver and whether, in professional disciplinary proceedings, waiver by a person for the purpose of establishing that they had not received a fair trial (due to the absence of independent representation) extended to the retrial

Whether to recuse a judge on the grounds of apparent bias and to set aside a judgment (giving reasons for dismissing the claimant’s application for permission to bring a derivative claim on behalf of MCPLC against HSBC based on alleged misuse of HSBC’s position as provider to MCPLC of recovery finance) in circumstances where the judge’s family company had received recovery finance from HSBC in the months leading up to the hearing and there were alleged departures from judicial method at the hearing and in the judgment.

Whether to grant the application of the trustees in bankruptcy in Gibraltar’s largest bankruptcy to postpone the automatic discharge of the bankrupt and whether to award indemnity costs to the bankrupt as a result of the litigation conduct of the trustees in bankruptcy and whether to grant a stay pending the trustees’ appeal of the operation of the court’s order dismissing a non-discharge application

Whether a liquidator owed to the court a duty of full disclosure when seeking Berkeley Applegate relief and, if so, the consequences for previous orders of the court of having failed to do so; whether to award indemnity costs in favour of former administrators who had come to court to assert the statutory charge in respect of their unpaid remuneration and expenses.

In proceedings remitted by the Court of Appeal to the High Court, whether a foreign bankrupt had established that his foreign bankruptcy order had been procured by fraud such that the status of his bankruptcy trustee should not be accorded recognition at common law in England.

Whether permission should be given to a Russian bankruptcy trustee to rely on hearsay evidence contained in three witness statements of a former employee of a Russian bank in circumstances where the witness had decided shortly before trial not to attend for cross-examination

Whether misfeasance proceedings against joint administrators and their former solicitors should be disposed of summarily as having been compromised by a settlement agreement between the claimants and a third party

Whether a foreign bankruptcy trustee had an arguable proprietary claim to immovable property or its proceeds in England and whether the bankrupt should be permitted in principle to meet his legal fees and living expenses out of the same under an existing freezing order regime operating in fraud proceedings brought against him in England by a Russian bank

Whether the threshold conditions for security for costs under CPR Part 25 had been satisfied against a foreign bankruptcy trustee seeking recognition at common law of her status as such

Whether the English court can grant assistance to a Russian bankruptcy trustee in respect of immovable property situate in England and whether a Russian bankrupt can oppose recognition of his bankruptcy order on the grounds that he wishes to re-litigate in England the question whether the petitioning creditor’s Russian judgment debt was obtained by fraud

Whether a disciplinary appeal tribunal of a recognised professional body had acted within its powers and/or unfairly when upholding an order for costs made against a member despite its determination that the underlying disciplinary findings to which the costs order related had been unsafe and should be set aside

Whether a claims release deed by which insolvency office-holders required a contributory/creditor to act in a certain way and to refrain from various acts of support for an investigation into the affairs of Debenhams Plc was unenforceable on grounds of illegality or abuse of power

Whether a settlement agreement reached between a bank and a client compromising litigation between them had the effect of releasing insolvency office-holders and their solicitors from liability to the same client and the applicability of the rule in ex parte James

Whether a Russian trustee in bankruptcy should be recognised at common law by the English court (including whether the bankrupt had submitted to the bankruptcy jurisdiction in Russia and whether there were bars to recognition) and, if recognised, whether the court has power at common law to give assistance to the trustee in respect of immovable property in England

Whether discharged bankrupts have standing to challenge transactions entered into by their trustee in bankruptcy on grounds that they were unlawful and without authority and whether bidders in a bidding competition conducted by liquidators as officers of the court have standing to challenge the resulting sale on grounds that the bidding was rigged and the process was unfair

This case arose out of the collapse of international law firm Ince & Co. The main administrations were being conducted as main proceedings in England and Wales. Former partners of Ince & Co France had nevertheless sued the administrators in France. Phillip (led by Stephen Davies KC) successfully obtained the court’s sanction for the administrators to apply to the French courts for the dismissal of claims brought against them by former partners in Ince & Co France.

Whether contributories should be given permission to commence misfeasance proceedings against former administrators of the company notwithstanding releases of the administrators from liability contained in an approved CVA

Whether an insolvency office-holder had standing to acquire a hostile transfer of appointments under the block transfer procedure

Whether claimants should be directed to provide security for costs on the grounds that they had taken steps in relation to their assets that would make it difficult to enforce an order for costs against them within the meaning of CPR 25.13(2)(g)

Whether a property was the principal residence of bankrupts at the date of their respective bankruptcies and whether partnership property vested in the trustee in bankruptcy of two of the partners

Whether a judge should recuse himself from trying a case when the controlling mind and will of the only active defendant had been a school friend of the judge

Whether bankrupts had standing to apply to set aside transactions entered into by their trustee in bankruptcy
(appeal listed on 13/14 October 2020)

Whether bidders in a competitive bidding process supervised by liquidators of an unlimited partnership had standing to challenge the fairness of the process (appeal listed on 13/14 October 2020) and whether the threshold conditions for varying an extended disclosure order under CPR PD 51U para 18 had been met

Applications within insolvency proceedings relating to the ownership of emails, raising questions of confidentiality and privacy rights.

Liquidator claiming recovery of assets on the basis that they were not properly authorised and/or transferred away from the company in anticipation of an adverse outcome of environmental claims against it.

Whether there had been a transaction at an undervalue in a business restructuring

Acted for the Claimant in a claim arising from the sale of complex interest rate derivatives to a property management company, including a claim for misrepresentation in relation to LIBOR rigging.

Whether Scotland has exclusive jurisdiction over claims that solicitors based in Scotland acted in breach of fiduciary duty when employed by English administrators of an English company to assess English causes of action.

Whether a bankruptcy order should be set aside in the “black cab” case on the grounds that the court had contravened settled practice of the bankruptcy court when faced with a disputed petition on the first return date.

Whether accounting journal entries constituted/evidenced a transaction at an undervalue and whether a witness statement of the applicant liquidator had any evidential status at trial.

Whether directors who conducted an informal liquidation without making adequate provision for all creditors were guilty of conduct which made them unfit to be a director of a company.

Whether an assessment of costs on the indemnity basis should be directed after discontinuance at trial of a claim under s.423 of the Insolvency Act 1986.

Whether administrators or their appointing bank breached duties owed to the company’s creditor, shareholder and guarantor by selling a development property in London’s Canary Wharf at an undervalue.

Whether and if so and to what extent claimant liquidators should be directed to identify their funders and other related information and, if so, on what terms.

Whether and to what extent a corporate customer should be permitted to plead that its bankers were responsible for artificially distressing it.

Whether the right of a bankrupt to exercise rights to draw down lump sum or other payments from his pension could be brought into account on an application for an income payments order.

Whether director guarantors of their company’s debt to its bankers could resist bankruptcy proceedings on the grounds that the bank had entered a joint venture with the company and breached duties owed to the company in that capacity.

Whether and, if so, to what extent, the UK bankruptcy court should allow a bidding process within a court-supervised liquidation plan in Spain to influence UK bankruptcy proceedings.

Whether there should be a case management stay of English insolvency proceedings pending determination of proceedings relating to the same subject matter in New York.

Whether liquidators could assess bills of solicitors employed by administrators and whether administrators had the power to agree such bills after they had ceased to be in office.

Application to remove joint administrators of a group of companies on grounds of conflicts or duty and interest and the management of such conflicts.

Whether a conditional fee agreement provided that a company liquidator was personally liable for fees due in respect of work carried out on behalf of the company or whether liability was not dependent on receipt of sums recovered.

Whether a mortgagee who had discontinued possession proceedings (i) could set off its liability for the mortgagor's costs of the proceedings against sums owed to it by the mortgagor; (ii) could add its own costs or its liability for adverse costs to the mortgage; and (iii) should be liable for costs on the indemnity basis by reference to its purpose in bringing the proceedings.

Whether findings in previous High Court proceedings should stand as prima facie evidence against an insolvency practitioner in subsequent professional disciplinary proceedings in circumstances where the insolvency practitioner had not attended the previous earing and claimed to have had no notice that his conduct would be in issue.

Whether solicitors should be ordered to disclose the identity of their client in aid of execution of a default judgment for delivery up of confidential information obtained by a litigation counter-party.

A dispute about the ability of a liquidator to have assessed by the court the legal fees incurred and paid by administrators as predecessor office-holders, raising issues as to the construction of the Insolvency Rules and the extent of the inherent jurisdiction of the court over an insolvent estate.

Whether an unfair prejudice and just and equitable winding-up petition should be struck out where the primary conduct complained of had been remedied.

The nature and effect of the statutory charge on assets to secure payment of administrators' remuneration and expenses and whether the administrators should be permitted to execute a debenture in their favour over the assets of the company.

Whether a creditor of a subsidiary company should have permission to commence proceedings to allege that a withdrawal of a letter of support given by its parent company to the board of the subsidiary constituted a transaction defrauding creditors within the meaning of s.423 of the insolvency act 1986.

Whether an administrator against whom summary judgment had been entered to pay legal costs under CFA agreements into which he entered as administrator of 2 companies was personally liable under the judgment in the event of insufficiency of assets in the insolvent estates to pay expenses.

A dispute as to whether a transaction had been entered into for the statutory purpose under section 423 of the insolvency act 1986 (transactions defrauding creditors).

Guidance from the Court of Appeal as to the test and relevant criteria required to satisfy the court that it is appropriate to appoint a provisional liquidator over a company at the outset of winding up proceedings.

The first case to reach the Court of Appeal on the principles applicable when assessing the remuneration of insolvency office-holders and general guidance given on the practice statement (Ch D: fixing and approval of remuneration of appointees) [2004] BCC 912.

Whether a petitioning bank had made out an arguable case that the statutory preconditions for presenting a bankruptcy petition in section 265(1)(c)(iii) of the insolvency act 1986 had been satisfied.

Excise duty inward diversion fraud. In considering whether to continue a world-wide freezing order, the circumstances in which the court will infer a risk of dissipation from underlying allegations of fraud where there is limited solid evidence that the defendant has assets.

CDDA. Whether the Claimant in director disqualification proceedings should be required to clarify allegations relating to a defendant's involvement in an unauthorised collective investment scheme which the Claimant alleged was unlawful pursuant to the Financial Services Act.

Whether the Judgments Regulation or the Insolvency Regulation applied to a claim for damages issued in the English court against a Dutch bankruptcy trustee and whether the English court was forum non conveniens.

Whether it was appropriate to remove liquidators from their appointment as liquidators to one of two associated companies due to an alleged conflict of duties owed to each of those companies.

Acting for a trustee in bankruptcy in a second appeal concerning the meaning and effect of the “use it or lose it” provisions in s.283A of the Insolvency Act 1986.

Acting for a liquidator in a wrongful trading and misfeasance trial involving a failed property development.

Whether English office-holders should await the outcome of foreign proceedings before adjudicating upon a proof of debt.

Acting for a bankrupt and his wife seeking to have their matrimonial home re-vested in them in a test case about the operation of the “use it or lose it” rule.

IVA Providers' claim to determine the meaning and effect of the IVA Protocol, raising issues of justiciability and the question whether institutional creditors were bound to vote in favour of protocol-compliant IVAs in certain circumstances.

An application for a non-party costs order against a director of a company sued by Equitas during an informal insolvency insurance run-off.

Application for disclosure by trustee opposed on grounds of breach of Art 8 of ECHR.

Whether the ability of a trustee in bankruptcy to claim occupation rent based on equitable principles survived the passing of the Trusts of Land and Appointment of Trustees Act 1996 and the decision of the HL in Stack v Dowden.

Construction of a time-bar clause in a CVA.

CDDA - Culpability of director for collapse of The Accident Group; corporate governance issues; competence of finance director; unlawful dividends.

An arbitration arising out of the football creditors rule as it affected Leeds United FC and the ability of the Football League to impose a 15 playing points deduction by reference to the football creditors rule.

Whether a trustee in bankruptcy was prevented from applying for possession and sale of the matrimonial home prior to the happening of any of the events stipulated in a pre-bankruptcy order of the divorce court postponing sale.

Concerning the nature and effect of the provisions restricting the use of company names in sections 216 and 217 of the Insolvency Act 1986 and the ability of a petitioner to found a petition under section 459 of the Companies Act 1985 based on breaches of section 216.

Application by local authority to sell PFI assets pending trial of a claim by the funder of a failed PFI project of a right to remove and sell them notwithstanding a PFI vesting clause on contractor default.

Nature and extent of court's jurisdiction to strike down transactions defrauding creditors and limitation period within which to do so.

Circumstances in which directors may be jointly and severally liable for unlawful loans made by each other to their company.

Whether fixed or floating charge over credit balances; Whether cause shown for removal of liquidators.

Amendment to a rule 3 statement in support of directors' disqualification proceedings ought to be allowed so as to bring the real issues before the court if that could be achieved without substantial prejudice to the defendant - however, such amendment would only be allowed subject to a sanction in costs including an interim award of costs of £50,000 to the Defendants.

Whether declaration of trust of life policy a transaction at an undervalue.

Whether unfair prejudice or material irregularities affecting CVAs, conflicts of interest affecting office-holders in group insolvency.

Whether time costs and remuneration of insolvency practitioner as officeholder were recoverable as litigation costs.

Judicial review of disciplinary proceedings against licensed insolvency practitioner, whether fair process.

Effect of insolvency clause, whether to appoint provisional liquidator, length of proposed provisional liquidation.

Class 1 transaction, extent of duties of CEO to ensure compliance with Listing Rules; whether CEO ought to have discovered cheque kiting, duties of non-executive director to investigate alleged whistleblower complaints.

Nature and extent of court's jurisdiction to strike down transactions defrauding creditors and limitation period within which to do so.

Test case on customer deposits. Application by SoS for directors' disqualification order alleging unfitness in that the directors had continued trading without taking adequate steps to protect deposits of cash paying customers of World of Leather furniture business. Directors continued trading with reasonable prospect of achieving a corporate solution and thereby avoiding insolvent liquidation and with the benefit of professional advice. Application dismissed.

The defendant directors to disqualification proceedings were entitled to have the case against them at trial strictly limited to the complaint as clarified in a letter from the Secretary of State.

Operation of the "football creditors" rule, whether Wimbledon's CVA was unlawful.

Repatriation of intellectual property rights transferred by insolvent English company to nominee companies.

Removal of joint liquidators - appropriate test - construction of debenture - fixed or floating charge.

Whether directors' disqualification proceedings justifiable.

Nature and extent of insolvency set off.

The Court declined to stay a s459 petition for arbitration on the grounds that the court was the proper tribunal to decide the petition and related issues.

Correct procedure where the evidence in the affirmation did not support the gravity of the allegations. Pre-issue conduct of Secretary of State, duty of fairness and failure to interview director.

Whether the Inland Revenue should disclose documents relating to its conduct in other football insolvencies.

Test case on taking consumer deposits whilst insolvent.

Whether a bankrupt could pursue a claim for professional negligence.

Whether the liquidators were entitled to security for costs on an application to remove them from their posts under s108.

Whether expert evidence of best practice admissible on application to remove liquidator.

Misfeasance, fraudulent trading, freezing order, calculation of limit.

Administration petition - whether purpose of more advantageous realisation of the company's assets likely to be achieved.

Approach to construction of CVAs and meaning of "contingent creditor".

Whether trading whilst insolvent and non-payment of Crown Debts amounted to unfit conduct of directors.

Transaction at an undervalue - whether monetary compensation appropriate - grant of injunction and appointment of receiver pending speedy trial.

Individual Voluntary Arrangement - fixed duration - effect of failure to extend within the fixed period.

Administration - whether solicitors should be given leave to retain title deeds of a client company in administration.

Effect of non-compliance with Insolvency Rules and Practice Direction.

Ability of the Official Receiver to use s236 in aid of pending disqualification proceedings.

Whether proceeds of insurance policy payable upon permanent disablement of bankrupt vest in trustee in bankruptcy.

Whether milk quota held on trust for liquidators.

Bankruptcy - Grepe v Loam order.

Circumstances in which CA will set aside permission to appeal and ability of bankruptcy to litigate.

Whether administrative receivers personally liable for alleged misrepresentations.

Validity of specific assignment of individual's book debts following void general assignment.

Liquidator's application for summary judgment on misfeasance claim.

Whether Environment Agency needed leave / consent to commence criminal proceedings.

Whether liquidator's solicitor owed duty of care to funding creditor.

Class nature of s423 proceedings.

Effect on debenture holder of contractual prohibition against assignment.

Bankruptcy - approach of court to bankrupt's appeal out of time.

IVAs - whether unfair prejudice against creditor with insured claim.

Directors' disqualification - principles applicable to Carecraft procedure.

Whether bank had released assets from its security.

Bankruptcy - whether estoppel against trustee in bankruptcy.

Voluntary liquidation; application of VAT charged on asset sale.
CVL - whether liquidator accountable.

IVAs - failure and petition by supervisor.

Directors' disqualification - de factor directors.

Directors' disqualification - principles for striking out.

CVAs - whether material irregularity.

Directors' disqualification - indemnity costs against Secretary of State.

Extent of bank's duty to account as constructive trustee.

Directors' disqualification - meaning of s6 (1) (b).

Effect of cross-claim on bankruptcy petition debt.

Bankruptcy and restitution - accountability for profits.

Retrospective leave to commence proceedings against bankrupt.

Directors' disqualification - principles of fairness.

Directors' disqualification - strike out.

Receivers, overreaching and constructive trusts.

Whether bankrupt entitled to fishing licence.

Directors' disqualification - appeals.

Striking out proceedings against receivers.

Transactions at an undervalue and legal professional privilege.

Bankrupt trustees exercising power of appointment under a trust.

Whether receivers were administrative receivers.

Administration Order-whether leave to possess plant required.

Set off and misfeasance.

Statutory demand in foreign currency.

Wrongful trading, misfeasance and preference claim.