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Caroline Clark#897

Caroline Clark

Caroline Clark's insolvency career began over 30 years ago and includes senior responsibility for a portfolio of cases as well as regulatory experience working for the Joint Insolvency Monitoring Unit and national responsibility for compliance and technical matters working for major UK practices. Caroline is now a director of RMCSC, giving high quality insolvency compliance and management advice. As well as being a qualified insolvency practitioner Caroline has an MBA. This, together with experience outside the insolvency profession means that Caroline is qualified to advise about strategic and operational management as well as insolvency. Caroline is also a member of Mensa. Caroline has experience in most areas of personal and corporate insolvency but areas of particular interest include:- Compliance with statute and the principles of best practice including SIPs Strategy, systems and policies Risk analysis Complaints Progress reports Remuneration Regulation and fee estimates The practical and commercial application of legal and regulatory insolvency requirements Conflicts of interest
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A commercial tenant is in arrears of rent (since the start of the coronavirus (COVID-19 pandemic) and a landlord threatens to issue a winding up petition against the guarantor. Schedule 10 to the Corporate Insolvency and Governance Act 2020 has been interpreted as meaning that excluded debts are only those where the debtor is the tenant but not necessarily where a guarantor has a liability in respect of a debt owed by a tenant. Where the guarantor settled the arrears, can the guarantor petition the tenant under the indemnity? Are there any restrictions?
A commercial tenant is in arrears of rent (since the start of the coronavirus (COVID-19 pandemic) and a landlord threatens to issue a winding up petition against the guarantor. Schedule 10 to the Corporate Insolvency and Governance Act 2020 has been interpreted as meaning that excluded debts are only those where the debtor is the tenant but not necessarily where a guarantor has a liability in respect of a debt owed by a tenant. Where the guarantor settled the arrears, can the guarantor petition the tenant under the indemnity? Are there any restrictions?
Q&As
A company has loaned money to another group company which is not repayable for ten years. If the company which has loaned the money enters an insolvency process, can the administrator or liquidator do anything to get it repaid earlier?
A company has loaned money to another group company which is not repayable for ten years. If the company which has loaned the money enters an insolvency process, can the administrator or liquidator do anything to get it repaid earlier?
Q&As
An individual has been made bankrupt, and as usual the case is passed over to the Official Receiver in the first instance. An individual who is an Insolvency Practitioner is also a creditor and, wearing their creditor hat has nominated themselves to be appointed as trustee. Are there regulations (eg IPA) or case law that prohibits acting where there is such a conflict of interest?
An individual has been made bankrupt, and as usual the case is passed over to the Official Receiver in the first instance. An individual who is an Insolvency Practitioner is also a creditor and, wearing their creditor hat has nominated themselves to be appointed as trustee. Are there regulations (eg IPA) or case law that prohibits acting where there is such a conflict of interest?
Q&As
Are there any sanctions for a trustee in bankruptcy failing to deliver a copy of the progress report to the creditors within two months of the end of the period covered by the report as required by the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 18.8(6)? Under IR 2016, SI 2016/1024, r 18.6 (relating to progress reports in administration), there is an express sanction for failure to deliver a progress report in the time limit.
Are there any sanctions for a trustee in bankruptcy failing to deliver a copy of the progress report to the creditors within two months of the end of the period covered by the report as required by the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 18.8(6)? Under IR 2016, SI 2016/1024, r 18.6 (relating to progress reports in administration), there is an express sanction for failure to deliver a progress report in the time limit.
Q&As
Before a general meeting (GM) to remove the directors, they put the company into voluntary administration. What are the options for the majority shareholders, who do not agree with this decision? Does the GM still take place? Can the shareholders get a court injunction or order a company audit if they suspect the directors are acting against their interests and those of the company?
Before a general meeting (GM) to remove the directors, they put the company into voluntary administration. What are the options for the majority shareholders, who do not agree with this decision? Does the GM still take place? Can the shareholders get a court injunction or order a company audit if they suspect the directors are acting against their interests and those of the company?
Q&As
Can a creditor claim from a debtor company the costs of drafting, preparing and serving both a statutory demand and subsequent winding-up petition, and if not, why not?
Can a creditor claim from a debtor company the costs of drafting, preparing and serving both a statutory demand and subsequent winding-up petition, and if not, why not?
Q&As
Can a creditor prove for its debt and make a claim in the insolvency process after the bar date?
Can a creditor prove for its debt and make a claim in the insolvency process after the bar date?
Q&As
Can a statutory demand be served on a debtor in England and Wales in respect of a money judgment made in another jurisdiction?
Can a statutory demand be served on a debtor in England and Wales in respect of a money judgment made in another jurisdiction?
Q&As
Could a clause in a share purchase agreement that states ‘Nothing in the SPA applies to exclude or limit the liability of the seller to the extent that any claim arises or is delayed as a result of dishonesty, fraud…by the seller’ amount to a contingent liability that might prevent the seller from placing the company into an MVL following sale?
Could a clause in a share purchase agreement that states ‘Nothing in the SPA applies to exclude or limit the liability of the seller to the extent that any claim arises or is delayed as a result of dishonesty, fraud…by the seller’ amount to a contingent liability that might prevent the seller from placing the company into an MVL following sale?
Q&As
Does a trustee have the power to enter into agreements on behalf of the bankrupt and, if so, does it makes a difference if the subject matter of the agreement relates to an asset or to a liability of the bankrupt estate?
Does a trustee have the power to enter into agreements on behalf of the bankrupt and, if so, does it makes a difference if the subject matter of the agreement relates to an asset or to a liability of the bankrupt estate?
Q&As
Does putting a company into a formal insolvency process avoid debts of the company being paid?
Does putting a company into a formal insolvency process avoid debts of the company being paid?
Q&As
Does the equity of exoneration apply to a spousal family home where the bankrupt is the sole registered owner of the property?
Does the equity of exoneration apply to a spousal family home where the bankrupt is the sole registered owner of the property?
Q&As
How do you serve a statutory demand on a person with mental disability?
How do you serve a statutory demand on a person with mental disability?
Q&As
If a company in administration has sold its assets and business to the directors of that company, do they have any right as directors to know who were the other potential purchasers of the business and assets?
If a company in administration has sold its assets and business to the directors of that company, do they have any right as directors to know who were the other potential purchasers of the business and assets?
Q&As
If a liquidator's fees have been authorised by creditors (no committee) on a time cost basis in accordance with the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 18.16(2)(b) and their fee estimate has been exceeded but approval to take remuneration above estimate from the creditors as per IR 2016, SI 2016/1024, r 18.30(2)(b) is refused, how can they get approval for their fees? IR 2016, SI 2016/1024, r 18.30 does not provide for an application to court in this scenario. IR 2016, SI 2016/1024, rr 18.24 and 18.28 do permit an application to court in the absence of creditor agreement, but this is only where 'the rate or amount of remuneration fixed is insufficient or the basis fixed is not appropriate'.
If a liquidator's fees have been authorised by creditors (no committee) on a time cost basis in accordance with the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024, r 18.16(2)(b) and their fee estimate has been exceeded but approval to take remuneration above estimate from the creditors as per IR 2016, SI 2016/1024, r 18.30(2)(b) is refused, how can they get approval for their fees? IR 2016, SI 2016/1024, r 18.30 does not provide for an application to court in this scenario. IR 2016, SI 2016/1024, rr 18.24 and 18.28 do permit an application to court in the absence of creditor agreement, but this is only where 'the rate or amount of remuneration fixed is insufficient or the basis fixed is not appropriate'.
Q&As
If a mortgagee takes possession prior to an interim administration moratorium taking effect, is the position analogous to the appointment of fixed charge receivers? Can the mortgagee legally sell property pursuant to charge/Law of Property Act powers? What happens if the mortgagee obtained possession after the interim moratorium had begun?
If a mortgagee takes possession prior to an interim administration moratorium taking effect, is the position analogous to the appointment of fixed charge receivers? Can the mortgagee legally sell property pursuant to charge/Law of Property Act powers? What happens if the mortgagee obtained possession after the interim moratorium had begun?
Q&As
If a solicitor acting under a conditional fee agreement suspects that their client is soon to be made bankrupt, would it be a preference if the solicitor was paid following a hearing/mediation and following an agreement between the parties, such that the fees would have to be repaid to the trustee in bankruptcy (trustee)?
If a solicitor acting under a conditional fee agreement suspects that their client is soon to be made bankrupt, would it be a preference if the solicitor was paid following a hearing/mediation and following an agreement between the parties, such that the fees would have to be repaid to the trustee in bankruptcy (trustee)?
Q&As
If land, an asset of a company in member’s voluntary liquidation (MVL), which was due to be distributed in specie to the sole director or shareholder of the company in MVL, was in fact transferred directly to another company owned and controlled by that same director’s (rather than transferred into their sole name as shareholder of the company in MVL): Could this transfer be attacked at a later stage? And what steps should be taken now to rectify this transfer so that the transferee can take good title?
If land, an asset of a company in member’s voluntary liquidation (MVL), which was due to be distributed in specie to the sole director or shareholder of the company in MVL, was in fact transferred directly to another company owned and controlled by that same director’s (rather than transferred into their sole name as shareholder of the company in MVL): Could this transfer be attacked at a later stage? And what steps should be taken now to rectify this transfer so that the transferee can take good title?
Q&As
In a company which had a ‘multi-employer’ pension scheme, the administrators are willing to admit the scheme trustee’s debt (based on a valuation of the deficit including a section 75 (of the Pensions Act 1995) certificate). Must the administrators also accept the Pension Protection Fund’s subsequent claim for the entirety of the deficit (ie including all the deficits of all the employers as against only one of them)?
In a company which had a ‘multi-employer’ pension scheme, the administrators are willing to admit the scheme trustee’s debt (based on a valuation of the deficit including a section 75 (of the Pensions Act 1995) certificate). Must the administrators also accept the Pension Protection Fund’s subsequent claim for the entirety of the deficit (ie including all the deficits of all the employers as against only one of them)?
Q&As
In circumstances where a debtor’s income has been excluded from the individual voluntary agreement (IVA) (under excluded assets) since the IVA’s basis is a third party lump sum contribution in full and final settlement of the debts, would a potential payment from the debtor’s employer for breach of contract and unfair dismissal claim count as a windfall (the IVA is compliant with Consumer IVA Protocol 2016 and incorporates the IVA Forum Standard Conditions June 2016)?
In circumstances where a debtor’s income has been excluded from the individual voluntary agreement (IVA) (under excluded assets) since the IVA’s basis is a third party lump sum contribution in full and final settlement of the debts, would a potential payment from the debtor’s employer for breach of contract and unfair dismissal claim count as a windfall (the IVA is compliant with Consumer IVA Protocol 2016 and incorporates the IVA Forum Standard Conditions June 2016)?
Q&As
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  • Birmingham University
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