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2016-01-28 | 来源:51Due教员组 | 类别:更多范文

Focus Insurance Co Ltd, Re
Chancery Division

Case Analysis
Where Reported
[1996] B.C.C. 659; [1997] 1 B.C.L.C. 219; Times, May 6, 1996

Case Digest
Subject: Insolvency

Keywords: Conflict of laws; Liquidation

Summary: Liquidation; conflict of laws; director of insolvent Bermudian company facing bankruptcy proceedings in England; English courts under no duty to assist liquidators

Abstract: The liquidators of F, a Bermudian insurance company compulsorily wound up pursuant to the Companies Act 1981 of Bermuda, applied to the English courts for orders against H, a former director of F, under the Insolvency Act 1986 s.426(4) . The liquidators had obtained a judgment against H for USD 20 million and a Mareva injunction against disposal of assets, having also commenced bankruptcy proceedings against H in England.

Held, dismissing the application, that s.426(4) of the 1986 Act gave an English court a mandatory obligation to assist the courts of any "relevant country or territory", which included Bermuda, although the type of assistance was not specified, and the obligation should be complied with unless a good reason existed for not doing so, Dallhold Estates (UK) Pty Ltd, Re [1992] B.C.C. 394 Ch D (Companies Ct) and Bank of Credit and Commerce International SA (In Liquidation) (No.9), Re [1994] 1 W.L.R. 708 CA (Civ Div) considered. A dichotomy arose between the duties of the liquidator and those of a trustee in bankruptcy under English law, however, which created an in/daixieAssignment/daixieyingguoassignment/consistency between the orders the liquidators sought and F's status as the main creditor. The liquidator had to remit the net proceeds less expenses but the trustee had a duty to get in the assets and the fact of the bankruptcy itself served to prevent any recovery of a judgment debt. An element of oppression also arose, in that if the s.426 orders were granted, H could be exposed to an obligation to provide the same information both to the Bermudian liquidators and for the purposes of English bankruptcy proceedings.

Judge: Sir Richard Scott V.C.

Counsel: For the Bermudian liquidators: Elizabeth Gloster Q.C. and David Ashton. For H: In person

Solicitor: For the Bermudian liquidators: DJ Freeman

Significant Cases Cited

Bank of Credit and Commerce International SA (In Liquidation) (No.9), Re
[1994] 1 W.L.R. 708; [1994] 3 All E.R. 764; [1994] 2 B.C.L.C. 664; [1994] I.L.Pr. 300; Times, November 30, 1993; (CA (Civ Div))

Dallhold Estates (UK) Pty Ltd, Re
[1992] B.C.C. 394; [1992] B.C.L.C. 621; [1992] E.G. 18 (C.S.); (Ch D (Companies Ct))


Cases Citing This Case

Approved by

Hughes v Hannover Ruckversicherungs AG
[1997] B.C.C. 921; [1997] 1 B.C.L.C. 497; [1999] B.P.I.R. 224; [1997] 6 Re. L.R. 96; Times, March 6, 1997; (CA (Civ Div))

Considered by

HIH Casualty & General Insurance Ltd, Re
[2005] EWHC 2125 (Ch); [2006] 2 All E.R. 671; (Ch D (Companies Ct))

Legislation Cited
Bermudian Companies Act 1981

Companies Act 1981

Insolvency Act 1986 (c.45) s.285(3)

Insolvency Act 1986 (c.45) s.333(1)

Insolvency Act 1986 (c.45) s.426

Insolvency Act 1986 (c.45) s.426(4)

Insolvency Act 1986 (c.45) s.426(5)

Journal Articles

Problems arising upon inter-jurisdictional cooperation - scheme inconsistent with English law
Corporate insolvency; Foreign companies; Jurisdiction; Reciprocal enforcement.
S.J. 1996, 140(35), 894

Assistance of foreign courts
Corporate insolvency; Foreign companies; Jurisdiction; Reciprocal enforcement.
P.L.C. 1996, 7(5), 71

Assisting foreign insolvency courts
Corporate insolvency; Foreign companies; Jurisdiction; Reciprocal enforcement.
B.J.I.B. & F.L. 1996, 11(5), 248-249

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