• Little & Anor v Olympian Homes Ltd [2024] EWHC 1766 (Ch)

    Practitioners should be aware that email correspondence can give rise to a valid contractual waiver, and to waiver by estoppel. Play Where a contract requires a waiver to be given in writing, this can be done by email. An email can be validly signed electronically where: i) 'individuals' names are added or form part of the footers; ii) the insertion of "kind regards", "thanks", or "many thanks" indicates an intention to connect the name with the contents of the emails; iii) the footers at the end of each email contain names and contact details in the conventional style of a signature.

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    Consort Healthcare (Tameside) Plc v Tameside and Glossop Integrated Care NHS Foundation Trust [2024] EWHC 1702 (Ch)

    This case is notable as it was the first time the High Court awarded security for costs in a matter concerning a challenge to a proposed restructuring plan. Applications for security for costs in connection with Part 26 schemes and Part 26A plans are rare. Nothing in this judgment suggested that was likely to change. While observing that the court's exercise of discretion in this case was closely linked to the facts of the matter, it should be noted that the court indicated that, although the judgment might nevertheless encourage dissenting creditors in other contested restructuring plan proceedings to make applications for security for costs (which could end up in potential delays or in disruptions to the process), the plan before the court was a continuation of prior adversarial litigation. Whilst this may be a feature of some schemes and plans, it was suggested that this would be rare. No floodgate was opened by this decision. Play Consort Healthcare (Tameside) plc (the Company) was a special purpose vehicle which provided services to the Tameside And Glossop Integrated Care NHS Foundation Trust. This was done under the terms of a 'Project Agreement' entered into in 2007, under a private finance initiative. The Trust was required to redevelop an existing hospital site and then provide services including estate maintenance, security and a help desk. A dispute arose between the Company and the Trust. This went to adjudication, and ultimately resulted in a significant award which was made against the Company in favour of the Trust. The Company's view was that the adjudication award, together with the implications for the level of service that it would have to provide in future, made its business unviable. To avoid this, it proposed a restructuring plan under Pt 26A Companies Act 2006 in order to compromise the claims which had been made against it, and to vary its obligations under the Project Agreement. The Company's view was that without the benefit of a restructuring plan, it would have to go into administration. A restructuring plan was proposed, which involved three creditors. The first two of these supported the plan, but the third opposed it. These were: a) Consort Healthcare (Tameside) Intermediate Limited, which was a group company holding subordinated debt of the Company;   b) Ambac Assurance UK Limited, which was a guarantor of senior debt issued by the Company; c) the Trust.

  • Strategic Value Capital Solutions Master Fund LP and ors (Appellants) v AGPS Bondco Plc (Respondents) EWCA [2024]

    A case examining whether certain elements of a restructuring plan under Pt 26A Companies Act 2006 were justified and fair. Play The Court of Appeal tackles in detail some critical principles which restructuring plans under Pt 26A Companies Act 2006 are built upon. It centres upon whether one plan fairly treated all creditors, and whether it endorsed the pari passu distribution principle. The novel statutory powers of cross-class cram down are also examined and assessed on the basis of whether they are fair to all creditor classes (horizontal comparison); and whether the plan is also fair in relation to the treatment of creditors in the relative alternative scenario of liquidation (vertical comparison).