International Briefings
Consequently, in order to restore the trust in the reference
interest rate system which plays an essential role in the whole
financing system, a tightening of^the system has been deemed
necessary. It is proposed to implement supervision of fixing of
to strengthen the supervision of the financial sector by merging
together the Financial Business Council and the Danish Securities
Council to a new council called the Financial Council and to
establish the Systemic Risk Council.
...the objective is to strengthen the supervision
of financial institutions and ensure effective
enforcement in relation to possible infringements.
the interest rates in question and to give the Danish FSA the
opportunity to collect information relating to the past to be used
for future supervisions.
The overall objective of the preceding parts I, II and III of
the Bill sent for consultation throughout the summer of 2012 is
According to the Bill, the Systemic
Risk Council will have an advisory role
and will have to address systemic risks in
the financial field, including in areas that
are currently only subject to limited or no
regulation.
Furthermore, according to the consultation paper, the objective
is to strengthen the supervision of financial institutions and ensure
effective enforcement in relation to possible infringements. The
Bill, including all IV parts, is expected to enter into force on 1
January 2013.
•
Retrospective permission for legal proceedings
RE: COLLIERS INTERNATIONAL UK PLC (IN ADMINISTRATION)
[2012] EWHC2942 (CH) CHANCERY DIVISION, COMPANIES COURT
(MR JUSTICE DAVID RICHARDS) (24 OCTOBER 2012)
FACTS
The Governor and Company of the Bank of Ireland and its English
subsidiary, Bank of Ireland (UK) PLC, (the Banks) applied under
para 43(6) of Sch Bl to the Insolvency Act 1986 for retrospective
permission to institute legal proceedings against Colliers
International UK PLC (in administration) (the Company).
This paragraph provides that in relation to a company in
administration no:
"legal process .... may be instituted or continued against the
company or property of the company except (a) with the consent
of the administrator, or (b) with the permission of the court".
In 2006, the Company had prepared valuations of care homes
in the Southern Cross group, instructed by the Banks. In July 2011
the Southern Cross companies went into administration.The Banks
started to investigate whether there had been negligence in the
preparation of the 2006 valuations by the Company. The Company
went into administration in March 2012. Notification of claims
by the Banks was given in May 2012, however there was a series of
standstill agreements between the Banks and the Company that
only expired on 11 September 2012. Claim forms were issued by
the Banks on 13 September 2012, claiming damages for negligence
against the Company in administration.
H e had regard to:
» the lack of objection by the administrators;
» the circumstances in which it became necessary to issue the claim
forms as a matter of urgency;
» the subject matter of the claims being suitable for a Part 7 claim
rather than submission of a proof of debt; and
^ the existence of the Company's professional indemnity insurance.
The judge reviewed the history of the case law in this area.
There was a developed requirement for the court to look
beyond the language of the legislation to the entire context of
the provision and its purpose, with a general pre-disposition
by courts that the lack of prior permission should not render
the commenced proceedings a nullity. Having regard to those
considerations, there was little to support a conclusion that
proceedings brought without the permission required by various
provisions of the Insolvency Act were a nullity and much to
support a contrary conclusion.
CONCLUSION
The requirement for permission applies to insolvency
proceedings under the control of the court, thus designed to
ensure that the whole task of supervising the collection and
distribution of a company's assets should be committed to the
court. The judge could think of no reason why an administrator
should not be permitted to grant retrospective consent.
Jonathan Lawrence
K&L Gates LLP
T h e judge gave permission retrospectively for the
commencement of the proceedings.
jonathan,Iawrence@klgates.com
www.klgates.com
November 2012
Butterworths Journal of International Banking and Financial Law
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