Lexa Hilliard , KC
Lexa Hilliard KC is a popular and well-respected silk who is recommended by the legal directories for commercial dispute resolution, commercial chancery, company, insolvency and professional negligence. Her expertise also covers arbitration, banking and finance as well as fraud. She is particularly known for her cross-border litigation experience, often involving an insolvency or civil fraud angle. Clients note that she is: 'keenly commercial, incredibly passionate and works seamlessly with the team' and that she has: 'hugely impressive advocacy skills and strategic input'. She regularly handles high value, legally complex cases in both the domestic and international market, acting both as advocate and expert. Her ability to be 'highly inventive and always think of new ways to approach a case" allied to her: "no-nonsense approach" ensure her success with judges and tribunals as well as clients.
Practice Areas
Panels
- Consulting Editorial Board
- Contributing Author
Qualified Year
- 1987
Year Taken Silk
- 2009
Qualification
- Diploma in EC Law, Kings College London, LLB (Hons), London School of Economics and Political Science
Education
- Kings College London, London School of Economics and Political Science
9 Contributions by Lexa Hilliard
PRACTICE NOTES
Company Voluntary Arrangements: the Nominee’s Duties, Powers, Reporting and Enforcement (England and Wales)
Who is the nominee and what is their role in the CVA?
The nominee is a central figure within a company voluntary arrangement (CVA). For general background on CVAs as a whole, see Company voluntary arrangements—overview. Their involvement continues only up to the point at which the CVA proposal is either sanctioned or declined, and no further. A nominee must be a licensed insolvency practitioner (IP). This stipulation ensures that any CVA will be subject to independent scrutiny throughout that phase.
Historically, section 389A of the Insolvency Act 1986 (IA 1986) permitted other persons to be authorised solely to act as nominees or supervisors in voluntary arrangements. In practice this route was never taken, and IA 1986, s 389A was repealed by the Deregulation Act 2015, being replaced by the introduction of a regime for the partial authorisation of insolvency practitioners.
The positions of nominee and supervisor in a CVA are almost the same as those in an individual voluntary arrangement (IVA). Consequently, IVA case law in this area is relevant and can be applied to CVAs (see Practice Note: Role, powers, functions and duties of the nominee and supervisor of an individual voluntary arrangement (IVA))...
Restructuring & Insolvency
PRACTICE NOTES
CVA approval challenges: unfair prejudice and material irregularity—grounds, procedure, time limits, costs, FCA issues (England and Wales)
Grounds to challenge the company voluntary arrangement
An applicant may contest the approval of a company voluntary arrangement (CVA) on one or more of the following bases:
the proposal, in whole or in part, does not amount to a composition or arrangement within section 1(1) of the Insolvency Act 1986 (IA 1986)
the arrangement causes unfair prejudice to the interests of a creditor, member or contributory of the company
there has been a material irregularity at, or connected with, a company meeting or the relevant qualifying decision procedure (see SIP 6)
Although a CVA (or individual voluntary arrangement (IVA)) must be challenged through the statutory framework in IA 1986, the core principles of good faith and equal treatment—foundational to the pre‑1986 bankruptcy regime—help shape the application of those provisions (see Re New Look; while New Look was due to be taken to the Court of Appeal, the matter settled, so the first instance decision still stands).
A challenge to a CVA based on an irregularity relating to a decision taken at a company meeting, or a decision of the...
Restructuring & Insolvency
PRACTICE NOTES
CVA Modifications Before Creditors’ Approval: Permissible Changes, Consent Requirements, Process and HMRC Expectations (England and Wales)
Modifications to company voluntary arrangements (CVAs)
There is limited statutory direction on how CVA modifications should be approached. Some direction appears in Statements of Insolvency Practice (SIP) 3.2.
Alterations to a CVA proposal are acceptable, so long as they do not:
reshape the CVA so extensively that it is no longer a CVA at all (for example, a change compelling the company to enter administration would be impermissible)
restrict, vary, or diminish a secured creditor’s right to realise its security without that creditor’s express consent
reorder distributions so that any preferential creditor loses priority over non-preferential creditors without that creditor’s express consent
upset the rule that all preferential creditors share dividends pari passu without the disadvantaged creditor’s express consent
Amendments affecting preferential creditors cannot be approved merely because a majority of preferential creditors agree; each affected preferential creditor must consent. Creditors or members may propose modifications before the proposal is considered...
Restructuring & Insolvency
PRACTICE NOTES
CVA supervisors in England and Wales: roles, statutory duties, powers, VAT treatment, reporting, implementation, enforcement and vacation of office
Who is the supervisor and what is the supervisor’s role in a company voluntary arrangement (CVA)?
The supervisor is a pivotal figure within a CVA. For broader guidance on CVAs, see Practice Note: Company voluntary arrangements. Once creditors approve a CVA proposal, the supervisor’s duty is to ensure the arrangement is carried out in strict accordance with its terms.
The role must be performed by a licensed insolvency practitioner (Insolvency Act 1986, s 1(2); Insolvency (England and Wales) Rules 2016, SI 2016/1024, r 2.3(1)(i)). An earlier provision (IA 1986, s 389A) would have allowed other individuals to be authorised solely to act as nominees or supervisors in voluntary arrangements, but it was never utilised. Section 389A was repealed by the Deregulation Act 2015 and replaced by a regime permitting the partial authorisation of insolvency practitioners. The IR 2016, SI 2016/1024 apply to CVAs.
A CVA supervisor fulfils the same function as a supervisor of an individual voluntary arrangement (IVA)...
Restructuring & Insolvency
PRACTICE NOTES
IVAs in England and Wales: Nominee and Supervisor Roles, Powers, Decision Procedures (IR 2016), Statutory Duties and Enforcement
Who is the nominee/supervisor and what is their role in the individual voluntary arrangement?
The nominee and the supervisor play central roles in an IVA. Often, one professional fills both positions, although this is not a necessity. The nominee’s duties extend only up to the point when the IVA proposal is accepted or declined. If creditors approve the proposal, the supervisor then assumes responsibility for ensuring the arrangement is delivered exactly in line with its terms. No person may act as nominee or supervisor in an IVA unless they are a licensed insolvency practitioner (IP), a safeguard that provides independent scrutiny and professional supervision.
Under section 253(2) of the Insolvency Act 1986 and rule 8.3 of the Insolvency (England and Wales) Rules 2016 (SI 2016/1024), the IVA proposal must include:
the proposed supervisor’s name, address, qualification, and regulated professional body; and
the debtor’s confirmation that, so far as they are aware, the proposed supervisor is qualified to act as an IP or is an authorised person
...
Restructuring & Insolvency
PRACTICE NOTES
Secured creditors and guarantees in CVAs: enforcement rights, moratorium vetoes, landlord issues, proving and valuation, and unfair prejudice (England and Wales)
A company voluntary arrangement (CVA) proposal, or any alteration to it, cannot be approved by the company or its creditors if it would interfere with a secured creditor’s ability to enforce its security, unless that secured creditor agrees. In practice, where significant secured creditors or major landlords are involved, it would be atypical to advance a CVA without prior dialogue with them before circulating the proposals (see Practice Note: CVAs—landlord issues and remedies). In addition, where a CVA is put forward within 12 weeks of a moratorium ending under the Corporate Insolvency and Governance Act 2020 (CIGA 2020), those owed unpaid moratorium debts and priority pre-moratorium debts effectively hold a veto: neither the company nor the creditors may sanction the CVA unless those liabilities are discharged in full, unless the relevant creditors consent. CIGA 2020, Sch 3, para 4 protects creditors with unpaid moratorium debts and priority pre-moratorium debts (as defined in new section 174A of the Insolvency Act 1986 (IA 1986)) in any subsequent CVA (see Practice Note: Moratorium). The Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, apply to CVAs...
Restructuring & Insolvency
PRACTICE NOTES
Varying Approved CVAs under the Insolvency Act 1986 and Insolvency (England and Wales) Rules 2016: Powers, Procedure, Drafting and Challenges
Power to vary a CVA
Most company voluntary arrangements include a power to vary, allowing changes if circumstances alter or minor amendments are needed, so the arrangement need not be brought to an early end. This offers a less severe route for creditors, as the CVA may itself state that early termination will oblige the supervisor to petition for administration or a winding-up order.
Following the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, a CVA proposal can be amended with the nominee’s agreement in writing, provided that:
the nominee is not acting as the company’s liquidator or administrator; and
the nominee’s report has not been filed at court under section 2(2) of the Insolvency Act 1986 (IA 1986).
Beyond this, there is little statutory direction on varying a CVA once creditors have approved it. A supervisor may seek directions from the court, and any creditor or any other person may apply to the court to challenge an act, omission, or decision of the supervisor. However, there is no express statutory procedure that sets out how to alter or vary the CVA after approval by creditors...
Restructuring & Insolvency
PRECEDENTS
Chair’s Report Template: Company Voluntary Arrangement (CVA) Meeting and Decision Procedure (England and Wales) under Insolvency Act 1986 and Insolvency Rules 2016 – Resolutions, Voting, Modifications and Supervisors
Number of matter CVA [ insert matter number ] of 20 [ insert year ]
Report of the consideration of the proposal
Pursuant to sections 4(6) and 4(6A) of the Insolvency Act 1986 and rule 2.38 of the Insolvency Rules 2016, I certify that the company meeting in the above matter, properly convened for [ insert time and date ] at [ insert place of meeting ], was duly held. Creditors were duly invited to consider the proposal by way of a decision procedure, and I therefore report as follows:
The directors of [ insert company name ] Limited put forward a Voluntary Arrangement under Part I of the Insolvency Act 1986 dated [ insert date ]. This was [ approved OR rejected ] by the company and [ approved OR rejected ] by the creditors, with the modifications annexed as Appendix 6. [ IF THE PROPOSAL WAS APPROVED THEN ADD THE RELEVANT PARTS OF (2) ]
The following resolution was taken at the meeting: that specified proposed modifications should be made to the proposal by the addition of clauses as indicated and as set out in Appendix 6. This resolution was approved...
Restructuring & Insolvency
CHECKLISTS
Company Voluntary Arrangement (CVA) Proposal and Procedure: Indicative Timetable (see Checklist)
Checklist for
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Restructuring & Insolvency
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