UK: Property & Insolvency Bulletin - March 2011

Introduction

A comparison with last year suggests that nationally the number of insolvency situations have reduced but this does not tell the full story.

The retail sector has in the last few weeks seen off-licence chain Oddbins announce the closure of around 25% of its high street outlets and is widely expected to propose a voluntary arrangement with its creditors. In a similar vein Thorntons have indicated that some of their 600 stores may close. Bennetts, the East Anglian based electrical retailer, was placed into administration. Since the turn of the year the high street has also seen fashion retailers Krisp, Fenchurch and boutique fashion outlet Arrogant Cat amongst the casualties of a sector in which a slower than hoped-for Christmas trade, coupled with increases in VAT, inflation and business rates, following the last 5 yearly review, all appear to have taken their toll.

The retail sector is not the only sector affected. The holding companies of the Peverel Group, perhaps the largest property management company in the country, has been placed into administration following what appears to be a failure to secure a restructuring of its exposure to bank finance. This is the latest in a line of businesses in the property sector to suffer.

The common view is that the number of corporate insolvency situations (be they the appointment of receivers, liquidations, administrations or CVAs) will steadily increase throughout 2011 meaning that for those of us in the property sector the impact of insolvency on the property market will continue to be felt for some time to come.

The Chronicles of NAMA

Toward the end of 2009 the Republic of Ireland's then government passed legislation which would lead to the creation of the National Assets Management Agency (NAMA). The role of NAMA was a simple one: to remove toxic debt from the books of the Irish banks to assist in attempts to revive the national economy. The security would be acquired at a discount and purchased with Government backed bonds. In the first phase of NAMA (focusing on mortgages and other secured facilities with a minimum value of £20m) over £80bn in toxic debts were acquired. Whilst a significant amount of this debt was secured on assets located in Ireland, much (estimates range from £15bn and £20bn) is secured on property located in England's major cities as the Irish banks were keen (as of course were the major UK banks) to plough money into the British property market in the 10 years before the recent downturn. This means that the role of NAMA on the British property market cannot be ignored.

The role of NAMA: the review stage

Following the acquisition of these debts NAMA took time to analyse precisely what it had. It certainly appears that the Agency has completed its exercise and formed a view as to which assets it intends to sell (in order to release funds to subsidise the genuinely bad debts) and which assets it intends to try and manage (to ensure that the security is not jeopardised).

That NAMA is taking such steps is evidenced by its announcement of a panel of insolvency practitioners and property managers in November last year. It can also be seen from its recent actions both here and in Ireland.

The role of NAMA: the management stage

It was widely reported in the press that a deal has been struck to sell the recently completed Montevetro building in Dublin to internet giant Google for around £100m. NAMA acquired security over the building and funded the completion of the building before sanctioning its sale to Google.

The relationship between NAMA and the Maybourne Hotel Group, which owns Claridges amongst other luxury hotels, has also been the subject of much recent press coverage. Most recently that coverage has concerned the Dublin Supreme Court's decision that the acquisition by NAMA of Maybourne debt was of no effect, it having been purportedly acquired before NAMA had been legally established. However prior to that finding the stance taken by NAMA appeared to be a more humane one, providing the group with more time to secure alternative financing rather than seeking to force through a sale. This it believed it had the power to do prior to the decision of the Supreme Court. It should be said at this stage that the acquisition of the Maybourne loans is just one element of this ongoing litigation: the litigation concerns the very creation of NAMA itself and could impact upon its future role and indeed its very existence (which will be touched upon below).

Others have not been looked upon as favourably as Maybourne. Time appears to have been called on loans secured over One King William Street in the City of London (presently occupied by Rothschild) where receivers have been appointed. The same fate appears to have befallen Irish building companies McEnany Construction and Michael McNamara and Company. Logic would dictate that in all these cases NAMA sees the potential for realisation but needs to take steps to ensure that its security is not jeopardised. This could be through developing a cogent strategy for maximising rental income from a building, as might be so in the case of One King William Street, or ensuring that developments are completed, or development land is sold off at the best price reasonably achievable, as might be so in the cases of McEnany and McNamara.

The creation of a panel of property managers and insolvency practitioners, as well as the illustrations above, lead to the conclusion that NAMA is now in a position to take an active role in managing its assets.

The impact of NAMA on tenants

So far as tenants of NAMA - managed real estate are concerned this might result in a more aggressive management strategy, particularly in relation to rent and service charges, on the part of the landlord / NAMA as cash generation is maximised and unnecessary expenditure minimised. When it comes to the end of commercial leases tenants who wish to remain in business occupation may find it more difficult to agree terms with their landlord as NAMA's intention for the building will govern the stance that the landlord will take when it comes to granting new leases (or not as the case may be). However these changes aside the tenant ought not to experience any great change.

The impact of NAMA on debtors

The same cannot of course be said when considering the landlord or developer who would be the toxic debtor in the eyes of NAMA. NAMA has to date indicated a willingness to work with businesses (for example by providing a period of grace rather than calling in loans, appointing receivers rather than commencing a winding up). Perhaps this stems from its role as a state created bank with the intention of assisting in the economic recovery of Ireland. Perhaps however it is more to do with the power that NAMA has over its debtors and the extent to which a debtor is able to reject or modify that proposal.

The future for NAMA

The acquisition and management of loan books during the early part of 2010 was intended to be phase 1 of 3. Under phase 2 all remaining property loans (whether good bad or indifferent) held by AIB and Bank of Ireland would be acquired by NAMA and would undergo the same treatment as the larger loans acquired in phase 1. Phase 3 concerned the acquisition of specific categories of loan not falling within the first two phases.

Whilst it would appear that the role of NAMA within phase 1 of the project will not change in the immediate term, the future for phases 2 and 3 is now uncertain. Some say that the scope of phase 2 extends to poorly performing loans. Other say that phase 2 (and by extension phase 3) will not happen at all. The change in position is in some part driven by the anticipated introduction of a Labour / Fine Gael coalition and each party's stated intention to put a halt to bank bailouts. In other respects it is driven by ongoing court proceedings under which the creation of NAMA itself is being challenged, the outcome of which at present is not known.

Given the above we simply do not know what the future holds. If we assume that NAMA is to exist in its current form however, affected property owners and developers may find themselves between the proverbial rock and hard place whereas tenants may well find their landlords (under NAMA's influence) taking a more aggressive stance on matters of leasehold compliance, rent review and on lease renewal.

Whether this will remain the case under a new Irish Government remains uncertain.

Who has the last say? The Court of Appeal upholds a liquidator's decision despite creditor opposition

In Rubin v Coote [2011] EWCA Civ 106 (09 February 2011) the Court of Appeal has upheld the decision of a liquidator to settle litigation against a former director of a company notwithstanding the opposition of the company's creditors.

The liquidator of Branchempire Limited ('Branchempire') had negotiated a settlement of its claims against its former director Brian Henton and Lookmaster Limited ('Lookmaster'), a company controlled by him, whereby creditors stood to be repaid in full over a period of some two years. In order to complete the settlement the liquidator needed the sanction of the company's creditors under section 165 of the Insolvency Act 1986 (the 1986 Act).

The creditors however refused sanction to the liquidator to settle, seeking immediate payment from Mr Henton of the sum due under the proposed settlement. Consequently, the liquidator made a successful application to the High Court for an order sanctioning the settlement, under section 165(2)(b) of the 1986 Act. Michael Coote, a former long leasehold tenant of Branchempire and its major creditor, appealed, contending that the terms of the proposed compromise were not in the best interests of the creditors. This was against a 'long history of dishonest evasion' by Mr Henton divesting Branchempire of its assets in favour of himself and Lookmaster. Mr Coote also alleged that, in reaching the compromise with Mr Henton, the liquidator failed to make proper enquiries into the assets of Lookmaster and Mr Henton. In support of this allegation Mr Coote sought to introduce a substantial amount of new evidence relating to Mr Henton's assets. In the event the Court of Appeal refused to admit this, mindful that this was relevant only to the question of timing of the proposed payment, not to the amount, and did not affect the overall prospects of the claims succeeding.

The Court of Appeal upheld the High Court's decision, agreeing unanimously that the reasoning of the High Court was correct; the judge had been entitled to find that the £1 million settlement figure was acceptable given the chances of success in the litigation and the additional costs which further investigation and litigation would involve. The Court of Appeal noted that it had no impact on the fact that Mr Coote would have had a dividend of 100p in the £1 had he accepted the offer when it was made, even if he had to wait two years for it.

Regarding the discretion of the judge of first instance in approving the disputed compromise, the Court of Appeal took the view that the court must weigh the prospective benefit to creditors from the settlement against the possible benefits from the available alternative causes of action. Where, as in this case, there was a clear rationale for the settlement, the court was right to prefer the settlement instead of requiring the liquidator to continue to negotiate for an immediate payment that it was not clear was capable of being achieved.

The other interesting point of note arising out of the Court of Appeal's decision is that it clarified that the court can take into account the interests of creditors whose claims arise after liquidation has commenced, for example, the interests of the liquidator in relation to his unpaid fees (which were substantial by the time Mr Coote came to the High Court, standing at approximately £847,000). The Court appeared to agree with the liquidator that the potential fruits of investigating whether further assets were available to meet the creditors' claims would be outstripped by the costs of such investigations.

Considering the history of the claim and the lengths Mr Coote had to go to for payment of the sums due to him it is perhaps understandable that he expected the liquidator, who had been appointed largely as a result of pressure from Mr Coote himself, to have gone the extra mile to try and achieve earlier payment. The Court of Appeal nevertheless adopted a commercial and pragmatic approach thus avoiding the inevitable outlay of substantial further costs for an uncertain improvement in the timing and amount of payment to creditors.

Rent deposits – how do you keep them safe?

In the current climate, it is standard practice for landlords to insist on substantial rent deposits from tenants before a commercial lease is entered into. We all know why landlords ask for rent deposits. It is security for payment of the rent and performance of the tenant's covenants in the lease.

All those involved in property transactions will be familiar with the practice of completing a 'rent deposit deed'. The monies are commonly held by the landlord but owned by the tenant. The rent deposit is given to the landlord to place in a bank account which is opened in the landlord's name. Landlords should also be aware that (more often than not) a rent deposit arrangement creates a charge over the deposit monies which needs to be registered at Companies House. Why does it need to be registered, I hear you ask?

Assume you are a commercial landlord that has taken a deposit from a commercial tenant (a company incorporated in England or Wales) and entered into a rent deposit deed which allows you to take a first legal charge over the monies. If you fail to register the rent deposit at Companies House within twenty-one days of creation of the charge (i.e. within twenty-one days of the date of completion of the rent deposit deed) then you will render the landlord's charge over the rent deposit void. Late registration of a rent deposit deed outside of the twenty-one day period requires an Order of the Court, and is far from easy to achieve. Late registration cannot be considered an option.

If you are in the unfortunate situation that the tenant subsequently becomes insolvent and the charge was not registered, the landlord will have no preferential status as a creditor and will merely rank with all other unsecured creditors. This means that if your tenant becomes insolvent you are unlikely to ever see that rent deposit again.

If, however, the charge is registered at Companies House and your tenant becomes insolvent, the landlord is a secured creditor. The tenant's insolvency official cannot insist on the immediate return of the deposit monies for distribution to the tenant's creditors. In some situations the insolvency official may be able to insist on some legitimate deductions before return of the balance of the deposit monies, but largely the deposit should remain intact.

So the message here is make sure your rent deposit deed creates a registrable charge and make sure it is registered at Companies House within twenty-one days of creation. A technical point to note is that the twenty-one day period for registration includes bank holidays and weekends, and does not even stop running if the Registrar at Companies House identifies a defect in your application and returns it for correction. The registration must be done promptly and properly so that your rent deposit is kept safe!

Unfair prejudice to landlords & 'guarantee stripping' in company voluntary arrangements (CVAs)

A CVA was introduced as one of the rescue arrangements under the Insolvency Act 1986. It allows a company to settle unsecured debts by paying only a proportion of the amount owed, or to vary the terms on which it pays its unsecured creditors. Whilst a CVA only requires approval of a 75% majority of the creditors by value, it binds every unsecured creditor of the company, including any that voted against it or did not vote at all. The CVA can be challenged in one of two ways: a) on the ground that it unfairly prejudices the creditor's interest and b) on the ground that there was a material irregularity in the conduct of the meetings called to consider the CVA proposal.

In a case of Mourant & Co Trustees Limited and another v Sixty UK Limited (in administration) and others [2010] EWHC 1890 (Ch), Mourant (the landlord) applied to the court for the revocation of a CVA, proposed to rescue Sixty UK Ltd (Sixty), on the ground of unfair prejudice. Although, unfair prejudice is a principle that has already had much judicial consideration and indeed, the issue of guarantee stripping in this very context was considered in the well known Powerhouse litigation in 2007, the case of Mourant has provided further reassurance to creditor landlords. Mourant not only reinforced the decision in Powerhouse but went further still in prescribing the circumstances in which a CVA can 'fairly' release guarantors.

Background

Sixty's obligations under the two Mourant leases were guaranteed by its ultimate Italian parent company, Sixty SPA (SPA). Sixty got into financial difficulties and a CVA was proposed. The effect of the CVA was to release SPA from all liability under guarantees upon payment of a sum of £300,000 to Mourant as landlords of the units. In return, Mourant were to be deprived of any recourse against SPA as guarantor during the remainder of the 10 year terms of the leases. The CVA also provided for two other stores occupied by Sixty to close, and for their landlords to receive 21% of Sixty's estimated liability to them under the relevant leases, which unlike the Mourant leases did not have the benefit of any guarantees. All other creditors under the CVA would continue to be paid in full, subject to normal terms and conditions and with the exception of the landlords of the closed stores no other external creditors were asked to accept any reduction in, or compromise of, their debts.

Mourant challenged the CVA on the following grounds:

  • The CVA left Mourant in a substantially worse position than on a liquidation of Sixty;
  • It was unfair in principle for the CVA to abrogate their contractual right against SPA under guarantees;
  • The estimate of Sixty's liability to the landlords adopted in the CVA was based on the unreasonable and unrealistic assumptions;
  • It was unfair to fix the amount of compensation payable to the closed store landlords in a predetermined sum;
  • The CVA treated the applicants differently from at least two other creditors or classes of creditors, without any proper justification; and
  • The CVA created no enforceable obligation upon SPA to pay any compensation in return for guarantee release.

Decision

The court agreed with Mourant's grounds for challenge and revoked the CVA, ruling that it was unfairly prejudicial to the landlord. The judge said that:

'In times of commercial and financial turmoil, the ability to enforce the terms of the existing leases against the guarantor......was a most valuable right, and there was no sufficient justification for requiring any of the guaranteed landlords (let alone just one of them) to accept a sum of money in lieu......To adopt such a procedure, in circumstances where the solvency of the guarantor is not in issue, is to undermine the basic commercial function of the guarantee, and to force the landlord to accept a commercially inferior substitute for it.'

The Judge went as far as to say that the CVA in question 'should not have seen the light of day'. He added that although it was not impossible to propose a fair CVA, greatest care was needed to ensure fairness, both in the substance and in the procedure that is adopted.

All in all this is good news for landlords and should provide encouragement to challenge the legality of CVAs which would otherwise unfairly limit landlords' ability to pursue solvent guarantors in circumstances for which the guarantees were given in the first place.

Extension of time to pay? Now face the consequences of insolvency

It is an age old problem for creditors who are faced with debtors who ask for more time to pay their debts. The Civil Procedural Rules (CPR) 14.9 and 14.10 allow for a debtor, following the admission of their debt, to request time to pay. It is open for a claimant to choose whether or not to accept a defendant's proposals; if the claimant does not accept the defendant's proposals, it is for the court to determine the time and rate of payment. The court's discretion conferred by CPR 14.10 to extend time for payment has not, until now, been examined. At the end of last year in Gulf International Bank v Al Ittefaq Steel Products Co and Others [2010] the High Court identified what it should take into account in exercising its discretion to extend time for payment of sums due following an admission.

The Facts

ISPC and ATHC owed G total sums in excess of US$100 million as a result of two promissory notes and a bridge loan facility. ISPC and ATHC admitted the claims. G applied for judgment on the basis of the admissions, whilst ISPC and ATHC made cross-applications seeking an extension of time, until 1 January 2011, to pay the sums admitted. ISPC and ATHC's total indebtedness to over 28 financial institutions was around US$2.2 billion. ISPC's and ATHC's previous attempts to negotiate to reschedule their debt had failed and they were attempting again to restructure their arrangements. ISPC and ATHC claimed that there was a real prospect that a rescheduling agreement would be finalised by 1 January 2011 if the extension sought was granted. In the absence of a rescheduling agreement, ISPC and ATHC claimed they would not be able to pay the US$100 million they owed to G. Further, if G sought to recover the sums due before 1 January 2011, ISPC would be forced into insolvency.

ISPC's and ATHC's application for an extension of time was made under CPR 14.9 and 14.10. CPR 14.9 sets out the procedure and the consequences where a defendant who makes an admission may request time to pay. A request for time to pay is a proposal about the date of payment or a proposal to pay by instalments at the times and rates specified in the request. If the claimant accepts the defendant's request the claimant may file for judgment. CPR 14.10 sets out the procedure to follow if the claimant does not accept the defendant's request. The court also has the power under CPR 40.11 to postpone the payment of sums in respect of which the creditor is entitled to judgment. CPR 40.11 provides that a party must comply with a judgment or order for the payment of an amount of money within 14 days of the date of the judgment or order. There also exists the power to give time to pay as part of the execution process, by which judgments are enforced, for example RSC Rule 47.1.

The Decision

The High Court noted that when exercising the discretion under CPR 14.10 they were bound to have regard to the interests of the relevant parties. Whilst the court did not have any previous decisions in relation to CPR 14.10 to which to refer it did take into account two decisions which had dealt with applications under CPR 40.11 (Gipping Construction Ltd v Eaves Ltd, Amsalem (t/a MRE Building Contractors v Raivid & Raivid). The court did not divert from the sentiment of these decisions and considered that an inability to pay will usually not justify a pre-execution extension of time, with an insolvent debtor having to take the usual consequences of his or its insolvency. The court held that whilst the interests of other creditors of the debtor, the debtor's workforce and suppliers will be engaged, a country's insolvency regimes are designed to take account of these interests. The protection of such interests are dealt with as part of specialist insolvency proceedings, supervised by specialist courts within whichever jurisdiction those proceedings occur. Therefore such interests will only rarely be a justification for an extension of time under CPR 14.10 or 40.11. The court held that it will only exceptionally extend time under CPR 14.10 and 40.11 and then only where the judgment debtor is solvent and for relatively short periods of time and after which the whole judgment debt will become payable.

On the facts of the particular case, the judge made it clear that the interests of the third party credit financiers did not justify the extension sought. The financiers were all commercial lenders and should be left to obtain such protection as they could secure in any insolvency proceedings. The judge stated that ISPC and ATHC must take the consequences of their insolvency. In his opinion there was no real prospect that G would sign up to a restructuring agreement before 1 January 2011, however he was not blind to the possibility that G might arguably be better off under such a restructuring deal and that, by obtaining judgment, G was attempting to improve its negotiating position with ISPC, ATHC and other creditors.

Practical implications

The decision illustrates the no-nonsense attitude of the courts in respect of requests for time to pay admitted debts. Whilst the decision does not create a binding precedent it appears the court's approach is consistent with earlier decisions in relation to CPR 40.11. The court will only exceptionally, and where there is a realistic prospect of payment, agree to extend time under CPR 14.10 and 40.11. It is perhaps of reassurance to a creditor that both before and after judgment is obtained the court's view remains that a debtor's mere inability to pay will not suffice to justify an extension in time. It therefore leaves parties with a choice of either accepting the consequences of their commercial arrangements or negotiating an alternative.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Jennifer Chappell
Oksana Price
 
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