Welcome to the latest edition of our Insolvency Bulletin. In this edition, we consider challenging situations office holders may encounter in connection with appointments, as well as issues which they or their firms may have to address.
Individuals are increasingly aware of their rights in connection with their data, and the strict deadline for compliance with a subject access requests means that recognising and addressing such requests to ensure compliance is very important. In this bulletin, data protection Partner Charlotte Clayson sets out the scope of office holders' responsibilities and key considerations when a SAR is made.
Ginny Butcher discusses a recent matter in which funds were paid by a company to an insolvency practitioner in connection with a proposed liquidation, where the appointment did not happen but the IP's firm was left as a reluctant trustee of those funds, without an obvious way to deal with the money.
Bankrupts seeking to elude their responsibilities and/or trying to retain assets will be familiar to IPs. Amy Halliday considers the Court's approach to contempt applications for repeated non-compliance by bankrupts, and Harvey Lavis reviews a recent decision on after acquired property where a bankrupt tried to remove the property in question from his Trustees' reach.
The question of mental capacity is one which will need to be considered from time to time. Senior Associate Maria Dunn provides a helpful reminder on navigating mental capacity, and Katie Farmer outlines two recent insolvency decisions concerning the mental capacity of the bankrupt.
In team news, we are very pleased to announce that Harvey Lavis has recently qualified as a solicitor.
If you have any suggestions or requests for future editions of the Trowers Insolvency Bulletin, please get in touch with one of the team.
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Dealing with Subject Access Requests as Office Holders
In this article Charlotte Clayson and Rachel Johnson look at the issue of Subject Access Requests ("SAR") and what these mean for an Office Holder.
Prospective appointment and unwilling trustee of funds
No business wants to find itself holding funds on trust for an indefinite amount of time with no way to escape the situation.
Ginny Butcher looks at a recent case dealt with by Trowers & Hamlins' Insolvency Team, where they navigated an efficient and protective way out of this situation.
Taylor v Leushing (No.1) [2021] EWHC 1189 (Ch); [2021] EWHC 1313 (CH)
Amy Halliday looks at the above case, which concerns an application from Mr Lueshing's trustees in bankruptcy to commit Mr Lueshing to prison for contempt of Court for failure to comply with an order of the Court.
After-acquired property: dealing with resistive individuals
In this article Harvey Lavis analyses the case, considering the decision handed down in Hyde & Another v Djurberg and Others [2024] EWHC 1188 (ChD) and the practical implications of the same.
He looks at the background, the Trustees' application, the law, the court findings and what the practical implications are.
Most of us are familiar with the issues which may arise when someone loses mental capacity to make decisions for themselves. For solicitors, and other professionals representing those for whom mental capacity may be in doubt, the importance of ensuring a client's ability to provide clear instructions and engage with our advice, remains fundamental. If a person is unable to make a decision for themselves, assistance may be required from another authorised to act on their behalf (for example, someone who holds a Lasting Power of Attorney), or from the Court.
Mental capacity in insolvency cases - recent decisions
In the context of litigation, CPR 21 deals with circumstances where a person lacks capacity to conduct proceedings. When this occurs, they are called a "protected party". CPR 21 applies to insolvency proceedings by virtue of rule 12.1 IR 2016.
Katie Farmer looks at two relatively recent decisions relating to insolvency proceedings illustrate the impact issues of capacity can have in such litigation.
