Jurisdiction(s):
United Kingdom

English court: permission to serve out for winding-up petition; Luxembourg sub-fund arguably an ‘unregistered company’ under Insolvency Act 1986; low ‘serious issue’ threshold affirmed

Published on: 09 February 2024

Published by a LexisNexis Restructuring & Insolvency expert

Legal News

Article summary

East Riding of Yorkshire Council (as administering authority of the East Riding Pension Fund) v KMG SICAV-SIF-GB Strategic Land Fund [2023] EWHC 2884 (Ch), [2023] All ER (D) 160 (Jul)

What are the practical implications of this case?

The judge applied the well-established approach in VTB Capital plc v Nutritek International Corporation [2013] UKSC 5 (paras [5] and [164]), requiring a creditor, seeking permission for service out, to demonstrate:

that there is a serious issue to be tried on the substantive merits of the claim
that there is a good arguable case justifying service out of the jurisdiction
and, in all the circumstances, that England is clearly or distinctly the appropriate forum for the trial of the dispute, and that the court should exercise its discretion to permit service out of the jurisdiction

The judge noted the low threshold inherent in the expression ‘serious issue to be tried’. Importantly, the court held there was indeed a serious issue as to whether the relevant sub-fund constituted an entity that could be wound up. As this fund structure is widely adopted around the world, the decision will be of interest to fund managers and their professional advisers as to the...

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