How has Covid-19 changed the landscape for commercial dispute resolution Robert Ganpatsingh Jonathan Compton WWW.DMHSTALLARD.COM
Jonathan Compton 1) How the COVID-19 crisis has affected the Court system and your ability to resolve disputes 2) New insolvency provisions, director duties and the forthcoming UK Chapter XI protection of companies 3) How to deal with those who refuse to pay WWW.DMHSTALLARD.COM
Robert Ganpatsingh 4) The disputes that you can expect to be prevalent over the coming months 5) A Case Study on how the courts are currently working WWW.DMHSTALLARD.COM
Q & A WWW.DMHSTALLARD.COM
Court Hearings • Have you had a hearing which was due to take place since Easter 2020 cancelled, adjourned or converted to a case management hearing? Poll WWW.DMHSTALLARD.COM
Court Hearings • Have you attended a ‘virtual’ hearing? Poll WWW.DMHSTALLARD.COM
Jonathan Compton 1) How the COVID-19 crisis has affected the Court system and your ability to resolve disputes 2) New insolvency provisions, director duties and the forthcoming UK Chapter XI protection of companies 3) How to deal with those who refuse to pay WWW.DMHSTALLARD.COM
The measures put in place to deal with the C19 emergency Court centre closures. Roughly 45% of courts have been closed The rapid expansion of remote hearings Few if any hearings are now conducted face to face WWW.DMHSTALLARD.COM
Problems The High Court Divisions have adapted best – resources and representation The number of adjournments The county courts have faired worst – multiple interim and directions hearings – unrepresented parties A proliferation of practices, differing from court to court. The introduction of Practice Directions to unify practice – conduct and preparation of bundles WWW.DMHSTALLARD.COM
Plans to re-open the court system The civil justice commission is urgently convening a working party to re-open the courts From the 15 June, the following courts in the South East will re-open Hastings Law Courts - County and Family (Magistrates' court already open) Slough County Court Staines Law Courts WWW.DMHSTALLARD.COM
The Corporate Insolvency and Governance Bill The proposals of the new Corporate Insolvency and Governance Bill (CIGB) (first reading HoC in last week of May has now passed all its Commons stages and moves to its committee stage in the Lords on the 16 th June 2020) Suspension of Winding Up petitions - 2 June 2020 in the case of Re: A Company (Injunction to restrain presentation of petition) [2020] EWHC 1406 (Ch), Mr Justice Morgan granted an interim injunction restraining the presentation of a winding up petition against an unnamed High Street retailer by its Landlord Moratoriums, monitors and Chapter XI Directors duties and liability in the Covid-19 and post Covid-19 age WWW.DMHSTALLARD.COM
Suspension of liability for wrongful trading: Great Britain • In determining for the purposes of section 214 or 246ZB of the Insolvency Act 1986 the contribution to a company’s assets that it is proper for a person to make, the court is to assume that the person is not responsible for any worsening of the financial position of the company or its creditors that occurs during the relevant period • In this section, the relevant period is the period which: • Begins with 1 March 2020 and • Ends with 30 June 2020 or one month after the coming into force of this section, whichever is the later WWW.DMHSTALLARD.COM
Progress of the Bill WWW.DMHSTALLARD.COM
Enforcement - Civil Procedure Rules Parts 70 to 73, 81, 83, 84, 85 and 89 Winding up is not available Writ of Control – take control of the assets of the company. (Previously known as a write of Fieri Facias). High Court Enforcement Officers attend to enforce a judgment Third Party Debt Order (you need to know the company bank account) Order to Obtain Information (a company officer attends to give evidence on oath as to the company assets and liabilities) Interest on Judgment Debts at 8% WWW.DMHSTALLARD.COM
Disputes you can expect to be prevalent over the coming months Debt Claims Insolvency matters Commercial Rent Arrears Insurance Claims Consumer Claims – Especially T ravel Employment related claims Disputes over contractual obligations WWW.DMHSTALLARD.COM
Contractual Disputes: Force Majeure & Frustration Force Majeure • Only if your contract provides for it • Only to the extent provided in your contract • Suspensory Frustration • Does not have to be expressly included in contract • T ough to prove • Not loved by Judges WWW.DMHSTALLARD.COM
A Case Study: Getting An Urgent Injunction Timescale • Application for urgent injunction made on Wednesday evening • Application hearing took place on Friday morning The Court • Extreme inconsistency between individual court staff • Accepted all evidence electronically • Judge progressive and facilitative • T elephone hearing fixed within 12 hours of application WWW.DMHSTALLARD.COM
A Case Study: Getting An Urgent Injunction The Hearing • T elephone Hearing • All evidence provided to Judge electronically • Judge reviewed evidence prior to hearing • Judge able to review video evidence via a file sharing platform The Outcome • Application Granted • A sealed order was provided by the end of Friday • T elephone hearing fixed within 12 hours of application WWW.DMHSTALLARD.COM
A Case Study: Getting An Urgent Injunction Lessons If you have genuinely urgent business it can be resolved speedily Remote hearings = less expense Extreme perseverance may be needed Correct choice of court is imperative The courts seems likely to come out of C-19 restrictions more digitally minded WWW.DMHSTALLARD.COM
Q & A WWW.DMHSTALLARD.COM
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