Fieldfisher’s contentious insolvency team combines highly specialist and market-leading technical insolvency experience with huge depth of experience in contentious insolvency matters. Our specialist insolvency lawyers work closely with our wider disputes team and have the capacity to provide timely and accurate advice to effectively deal with discrete claims up to the most significant cross border insolvency matters. Our European offices provide access to insolvency specialists in France, Germany, Italy and the Netherlands, and we have an extensive network of skilled lawyers in all major jurisdictions to enable a seamless and co-ordinated approach to be taken to the most significant cross border cases. Crucially, Fieldfisher can draw on recognised experts in key industry sectors and specialist areas of law so that we are well-placed to advise on the full range of disputes that may arise in an insolvency scenario, in whichever sector or sectors the insolvent company operates.
There has been a major expansion in recent years in the litigation funding market, particularly in the insolvency field, and so the issue of third party funding is now a question that arises in many of the cases in which we are involved. Our team works closely with the major litigation funders and we have been involved (and continue to be involved) in a number of cases involving funding and innovative fee structures. We are therefore well-placed to advise on the optimum ways to access funding for insolvency litigation claims.
Our recent contentious insolvency experience includes the following assignments:
- Advised an investor in an insolvent unregulated investment company in Guernsey on asset recovery strategies in Guernsey and England, including advice on complex issues of insolvency set-off.
- Acted for a secured lender in a contested administration application, successfully resisting a cross application by the company for the appointment of alternative administrators to those proposed by the lender. In the same case, we also successfully resisted an injunction application by the company for an order that a fixed charge receiver appointed by the lender vacate office. This involved complex arguments over the effect of the interim moratorium imposed by paragraph 44(1) of Schedule B1 to the Insolvency Act 1986 and other ways in which Schedule B1 applies to the appointment of a fixed charge receiver.
- Acting for UWV (Employee Insurance Agency; an autonomous administrative authority commissioned by the Dutch Ministry of Social Affairs and Employment to implement employee insurances and provide labour market and data services), a regular client of the firm, at the Supreme Court of the Netherlands. The issue concerned the ranking of claims by the governmental client in the insolvency of a Dutch company, and we successfully obtained a judgment that the claims ranked as a super-priority, behind only the liquidator's own fees.
- Acted for a global manufacturer, which acquired a company that had entered into a facilities agreement with ISDA Master Agreement terms with Landsbanki. A dispute has arisen as to whether the original transactions were terminated after Landsbanki went into administration, which is made more difficult because in December 2015 Landsbanki came out of administration and it claims that the transactions were merely suspended as a result.
- Acted for the commissioner, appointed by the Italian Ministry of the economic development pursuant to special bankruptcy law for large companies, to manage a Group of companies with more than six hundred employees and more than €100 million of revenue, to assist him in: the agreement with the unions and the suppliers to manage the continuity of the business during the special bankruptcy procedure; the assessment of branches of companies; the acquisition of the main branch from a Chinese Group; all the revocatory actions to collect payments; the civil and penal claims against the board of directors and the auditors; the agreement with the commissioners of the branch of company in Austria; all further actions, agreements, claims thereby finalized for the best possible payment solution to the creditors of the companies.
- Advised a client that had invested substantial funds in certain "capital protected" unregulated investment products offered through an offshore subsidiary of an AIM-listed investment business trust. The matter is likely to be part of a wider issue arising from the sale of unregulated investment products.
- Successfully advised a client, the purchaser of causes of action from insolvency practitioners, in respect of a claim against the former management and parent company with regard to a purported dividend of approximately £5 million that was not supported by any contemporaneous documentation.