Radcliffe Chambers
14 Experts
49 Contributions by Radcliffe Chambers Experts
PRACTICE NOTES
Practice Note
It has long been settled that a winding-up should not be set in motion where the petition debt is genuinely and substantially in dispute. Should an alleged creditor nonetheless try to proceed, the court may rely on its inherent jurisdiction to prevent a petition being presented. Moreover, treating the winding-up court as a tool for chasing debts amounts to an abuse of process. Yet there remains controversy over what amounts to a ‘genuine dispute’. This Practice Note reviews scenarios in which petition debts have been challenged and identifies key principles that emerge from the authorities and recent case law guidance and relevant commentary...
Restructuring & Insolvency
PRECEDENTS
Insolvency Act Application Notice
Note: Use this precedent with an application notice template compliant with the Insolvency (England and Wales) Rules 2016, SI 2016/1024—see Form IAA; IR 2016, r 1.35.
Heading to state court, location, case number, and whether the matter concerns a company or a bankrupt under the Insolvency Act 1986, between Applicant(s) and Respondent(s).
Made under para 1(8) Sch 4 IR 2016, CPR 6.36–6.37 and the ground in CPR PD 6B para 3.1. Insert parties’ names and addresses, details of the subject company/bankrupt, the judge level and court/hearing centre, and whether within existing insolvency proceedings with the reference.
Relief sought
Permission to serve the Respondent(s) at [address and country], or elsewhere in [country], with:
Application Notice [date]
Witness Statement of [name] [date]
Exhibit
Restructuring & Insolvency
PRECEDENTS
Note
Apart from the court heading, this Precedent is prepared from the standpoint of an application seeking permission to serve outside the jurisdiction, brought by a liquidator...
Restructuring & Insolvency
PRECEDENTS
1 Conflicts of interest
[ No conflicts of interest were reported before, or at the start of, the meeting OR [ Insert name ] declared a conflict of interest relating to [ Insert details ] ]. The Trustees agreed to disclose any [ other ] conflict if it arose during the meeting.
2 Notice and quorum
It was confirmed that due notice had been issued to all of the Scheme’s Trustees, the meeting was duly convened, and a quorum was in attendance. [ Insert name of chair of the Trustees ] (the Chair) declared the meeting open.
3 Apologies
[ No apologies for absence were received OR [ Insert name ] sent [ his OR her ] apologies for [ his OR her ] absence. ]...
Pensions
PRECEDENTS
Note:
Apart from the court heading, this Precedent is prepared entirely from the specific viewpoint of a liquidator’s relevant application seeking permission to effect service outside the jurisdiction...
Restructuring & Insolvency
Q&As
The tenant’s status
It is common, when a commercial lease comes to an end, for the occupier to stay on without putting a fresh contract in place. Where Part II of the Landlord and Tenant Act 1954 (LTA 1954) has been properly contracted out, that continued occupation is, at the outset, either as a tenant at will or as a tenant at sufferance. Once the landlord authorises the occupation, it can no longer amount to a tenancy at sufferance. By way of illustration, serving a notice stating that the occupation is on a tenant-at-will basis clearly constitutes consent. A tenancy at will is inherently fragile and precarious. It can be determined without any advance notice; a simple demand for possession is enough, and nothing further is required to end it by the landlord...
Property
Q&As
LTA 1954 and contracting out
Most commercial tenancies where the occupier is the tenant benefit from statutory security of tenure under the Landlord and Tenant Act 1954 (LTA 1954). This framework sets out a procedure that must be followed to end the tenancy, even after a fixed term has run its course. It does not cover tenancies at will. The level of protection provided by the LTA 1954 can be advantageous for tenants. That said, it is common for the parties to decide, as part of their agreement, that these LTA 1954 protections will not apply to a fixed term tenancy. Excluding the LTA 1954 is not accomplished simply by adding wording to that effect in the lease. The necessary steps are specified in LTA 1954, section 38A, which refers to the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003, SI
Property
CHECKLISTS
Considerations for trustees and managers
Confirm the scheme is updated to meet the statutory ban on age discrimination, considering carve‑outs in the Age Exceptions Order, SI 2010/2133.
If not already updated, assess whether changes are needed, again having regard to those exceptions.
Where a length‑of‑service test disadvantages members with over 5 years’ service, set procedures to obtain the employer’s confirmation that it reasonably appears to serve a business need.
Note some exceptions require a rule, practice, action or decision to pursue a specified aim, or allow it only to a defined extent; keep material showing it targets that aim or is limited accordingly.
Carefully consider whether proposed alterations to governing or operating rules, practices, actions or decisions would amount to age discrimination.
Considerations for employers
For occupational and personal schemes, factor in age discrimination and the scope of exceptions when seeking any changes to rules, practices, actions or
Pensions
CHECKLISTS
For trustees and managers of occupational pension schemes:
Confirm that the scheme’s provisions, criteria and practices (PCPs) have been examined and reviewed to verify compliance with the non-discrimination rule.
Where a PCP seems prima facie discriminatory and appears not to fit an exemption, raise with employer the question of whether an objective justification can be demonstrated.
Understand how both courts and tribunals typically assess the objective justification defence in general. Do not treat generalisations or stereotyped assumptions as an adequate answer or satisfactory explanation...
Pensions
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