Geraldine Quirk
Gerry has over 15 years’ experience advising clients in the insurance sector on a broad range of non—contentious issues. Gerry is one of the leading experts on portfolio transfer schemes, particularly in the legacy/run-off industry, and has developed a reputation as one of the ‘go to’ lawyers in this area. She is also a regulatory expert, advising on Solvency II, perimeter guidance, governance and conduct.
Practice Areas
Panel
- Contributing Author
12 Contributions by Geraldine Quirk
PRACTICE NOTES
Insolvency and resolution of UK insurers: FSMA 2023 write-downs, administration, liquidation, schemes, valuation, set-off, reinsurance assets, creditor priority, limitation and FSCS protection
Applicable legislation
Insolvency legislation typically includes bespoke measures for insurers, reflecting the sector’s regulated nature and the significance of insurance to the wider economy. The Financial Services and Markets Act 2023 (FSMA 2023) revises the UK framework for insurer insolvency, clarifying certain aspects and broadening safeguards for insurers and their policyholders undergoing insolvency or write-down processes—the government consulted on these reforms in 2021 and issued its response in April 2022 (refer to News Analysis: Financial Services Markets Bill sets out post-Brexit framework for UK financial services, HM Treasury publishes response to consultation on insolvency arrangements for insurers—LNB News 07/04/2022 78 and Practice Note: The Financial Services and Markets Act 2023—essentials). The Prudential Regulation Authority (PRA) released consultation paper CP3/23, Dealing with insurers in financial difficulties, outlining proposed rules and policy in light of the FSMA 2023 changes (see: LNB News 08/02/2023 70). Those rules came into force in September 2023. HM Treasury has also published the outcome of its consultation on a new Insurer Resolution Regime (IRR) and intends to legislate when Parliamentary time permits (see: LNB News 02/08/2023 31)...
Restructuring & Insolvency
PRACTICE NOTES
Part VII insurance business transfer schemes under FSMA 2000: UK regime, eligibility, process, Brexit impacts, regulator roles, independent expert, policyholder notification, Lloyd’s transfers, hearings, effects and tax
Under common law contract principles, an insurer cannot pass on the burden of its insurance obligations without the policyholder’s consent. As a rule, this requires a novation involving the existing insurer, the policyholder, and the incoming insurer. An exception arises under Part VII of the Financial Services and Markets Act 2000 (FSMA 2000), which, subject to specified conditions, allows an insurer to transfer the whole or a defined part of its business without securing the consent of each policyholder...
The UK has long operated a mechanism for portfolio transfers. Earlier procedures under the Insurance Companies Act 1982 drew a distinction between long-term insurance (broadly life, annuity, permanent health and pension business) and general insurance. For the former, a court application was required, whereas for general insurance, approval by the regulator was sufficient. In both instances, a persistent difficulty was that outwards reinsurance protecting the portfolio to be moved could not be included within the transfer and instead had to be novated separately and at the same time...
Restructuring & Insolvency
PRACTICE NOTES
UK insurers’ reorganisation and winding-up regime post-Brexit: 2004 Regulations, jurisdiction, third-country insurers, priority of insurance debts, PRA rules and FSMA 2023 revocation
STOP PRESS
The Financial Services and Markets Act 2023 (FSMA 2023) revokes the 2004 Regulations (SI 2004/353) with effect from a date still to be appointed, alongside a range of other EU‑derived legislation. The government does not intend to begin revoking individual EU‑derived instruments and provisions unless the regulators have prepared and consulted on rules that are ready for enforcement, and only where it is appropriate that the provisions are replaced with rules. FSMA 2023 also updated the UK’s insolvency regime for insurers, both to clarify certain points and to widen the protections available to an insurer and its policyholders undergoing insolvency or write‑down procedures—the government consulted on these measures in 2021, and published its response in April 2022 (see News Analysis: Financial Services and Markets Bill sets out post‑Brexit framework for UK financial services, and LNB News 07/04/2022 78). The Prudential Regulation Authority (PRA) issued consultation paper CP3/23 on insurers in financial difficulty, setting out its proposed rules and policy in respect of those changes introduced (see: LNB News 08/02/2023 70) in February 2023, and thereafter PS12/23 providing feedback on the responses to the consultation and the PRA’s final policy in September 2023. The rules came into effect on...
Restructuring & Insolvency
PRECEDENTS
Chair’s script for convening and conducting scheme of arrangement creditors’ meetings (Part 26 Companies Act 2006), including multi-class voting, proxies, polls, adjournments and court sanction (England and Wales)
1 Introduction
The current time is [ insert the exact time ], and I hereby formally commence and open the meeting of Scheme Creditors of [ insert name of the company ] [ with [ insert type of claim ] claims, and the meeting of Scheme Creditors of [ insert name of the company ] with [ insert type of claim ] Claims ]. My name is [ insert name ], from [ insert firm or company name ][ insert details of who the chairperson is eg adviser/administrator/provisional liquidator, etc ]. The meeting [ s ] that [ is OR are ] being held today [ has OR have ] been called by the Company under an Order of the High Court of Justice of England & Wales issued on [ insert date ]. The aim of the Meeting [ s ] is to review and, if deemed appropriate, approve the scheme of arrangement under Part 26 of the Companies Act 2006 that the Company intends to enter into with [ certain of ] its creditors. Under the Court Order, I am appointed chairperson of [ each of ] the Meeting [ s ] ...
Restructuring & Insolvency
PRECEDENTS
Chairperson’s witness statement reporting scheme creditors’ meetings and voting results for Part 26 Companies Act 2006 scheme of arrangement (England and Wales)
On behalf of Applicant
By: [ insert name ]
Statement No 1
Exhibits: [ insert details ]
Date: [ insert date ]
Filed: [ insert date ]
Court Reference No: [ INSERT COURT REF. NUMBER ]
Court and List
[ In the High Court of Justice, Business and Property Courts [of England and Wales] at [ insert location ], Insolvency and Companies List (ChD); or in the County Court at [ insert location ], Business and Property Courts List; or in the High Court of Justice, Chancery Division ]
In the matter of
[ insert company name ]
And in the matter of the Companies Act 2006
Statement of [ Insert full name ]
I, [ Insert full name ], of [ insert firm/company name ] of [ insert address ], state as follows:
I serve as a [ insert role/job title eg licensed insolvency practitioner and Fellow of the Institute of Chartered Accountants of England and Wales ] within [ insert firm/company name ]. [ Insert details of any relevant experience, such as advising on the implementation of creditor schemes of arrangement and acting as supervisor of such schemes ].
...
Restructuring & Insolvency
PRECEDENTS
Convening Order for Creditors’ Meetings in a Part 26 Scheme of Arrangement (Companies Act 2006) — Directions on Notice, Proxies and Voting — England and Wales
Court Reference No:
[ ENTER COURT REF ]...
Restructuring & Insolvency
PRECEDENTS
Creditor Scheme of Arrangement Template (Part 26 Companies Act 2006, England and Wales): Claims Submission, Expert Determination, Set-Off, Security and Dividends
(pursuant to Part 26 of the Companies Act 2006 of Great Britain)
Between [ insert name of company ] and its Scheme Creditors (as defined in the Scheme of Arrangement). Dated [ insert date ]
1 Definitions and Interpretation
For the purposes of the Scheme, unless the context dictates otherwise or an express provision states differently, the following terms have these meanings:
Act – refers to the Companies Act 2006 of Great Britain;
Admissible Interest – denotes any interest provided for under a contract, any relevant statute, or any other applicable law or judgment;
Admitted Claim – signifies the balance, if any, remaining due from the Company to a Scheme Creditor under clause 10.1 after applying set-off pursuant to clause 11.1;
Agreed Claim – the amount determined as owed by the Company in respect of a Scheme Creditor’s Claim in accordance with clause 8;
Available Distributable Amount – the sum available for payment by the Company to its Scheme Creditors pursuant to clause 13;
Board – means the Company’s board of directors from time to time;
Business Day – any day other than Saturday, Sunday, or any other day on which banks in the City of London...
Restructuring & Insolvency
PRECEDENTS
Precedent CPR Part 8 claim and directions for convening and sanctioning a Companies Act 2006 Part 26 scheme of arrangement (England and Wales)
IN THE HIGH COURT OF JUSTICE
Business and Property Courts of England and Wales at [insert location], Insolvency and Companies List (ChD); or in the County Court at [insert location], Business and Property Courts List; or in the High Court of Justice, Chancery Division.
Claim No: [No.] of [insert year]
Claimant
In the matter of [insert name of company] and in the matter of Part 26 of the Companies Act 2006
Defendant(s)
Does this claim involve any issues under the Human Rights Act 1998? [Yes or No]
Defendant’s name and address
Details of claim (see also overleaf)
A. The above company (the Applicant) seeks the following orders and directions:
An order sanctioning a scheme of arrangement (the Scheme) under section 899(1) of the Companies Act 2006, provided the Scheme has been approved by the requisite creditor majorities;
Upon such approval, that the application to sanction the Scheme be listed for hearing before a Judge of the Chancery Division;
An order for the directions identified in paragraph B below...
Restructuring & Insolvency
PRECEDENTS
Precedent notice convening meetings of scheme creditors to approve a Part 26 Companies Act 2006 scheme of arrangement (England and Wales)
Court Reference No:
[ Provide court reference ]...
Restructuring & Insolvency
PRECEDENTS
Precedent witness statement for sanction of a Part 26 Companies Act 2006 scheme of arrangement: notice, advertising and scheme creditors’ meetings (England and Wales)
On behalf of: applicant
By: [ insert name ]
No: [ insert statement number ]
Exhibits: [ insert details ]
Date: [ insert date ]
Filed: [ insert date ]
Court Reference No: [ INSERT COURT REF. NUMBER ]
[ IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES] [IN [ INSERT LOCATION ]] [COMPANY & INSOLVENCY LIST (ChD)] OR IN THE COUNTY COURT AT [ INSERT LOCATION ] [BUSINESS AND PROPERTY COURTS LIST] OR IN THE HIGH COURT OF JUSTICE [CHANCERY DIVISION] ]
In the matter of [ insert company name ]
And in the matter of the Companies Act 2006
Statement of [ insert full name ]
I, [ insert full name ], being the [ insert role/job title ] of [ insert company name ] of [ insert address ], make this statement as follows:
1 Introduction
I hold the office of [ insert role/job title ] at [ insert company name ] (the company), having taken up that position on [ insert date ]. I am the company officer most directly involved with the proposal that forms the subject of this witness statement. The facts and matters to which I refer in this...
Restructuring & Insolvency
PRECEDENTS
Precedent: Chairperson’s report of scheme creditors’ meeting under Part 26 Companies Act 2006 – England and Wales
Court Reference No: [ INSERT COURT REF. NUMBER ]
[ IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES] [IN [ INSERT LOCATION ]] [INSOLVENCY AND COMPANIES LIST (ChD)] OR [IN THE COUNTY COURT AT [ INSERT LOCATION ]] [BUSINESS AND PROPERTY COURTS LIST] OR [IN THE HIGH COURT OF JUSTICE] [CHANCERY DIVISION] ]
In the matter of [ Insert company name ]And in the matter of the companies act 2006
Report
I, [ Insert name ], of [ insert firm/company ], [ insert address ], was appointed by the Court to serve as chairperson of the meeting[s] of the Scheme Creditors of [ insert company name ] (the Company) (as defined in the scheme of arrangement mentioned below) (the Meeting[s]), convened pursuant to an order made herein and dated [ insert date ] (the Order).
The Meeting[s] [were OR was] held at [ [ insert address ] OR virtually by telephone/webinar ] on [ insert date ] at [ insert time ] and were summoned by notice despatched at least [ insert number ] clear days prior to...
Restructuring & Insolvency
PRECEDENTS
Template Sanction Order for a Companies Act 2006 Scheme of Arrangement (England and Wales)
Court Reference No:
ENTER COURT REF...
Restructuring & Insolvency
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