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Welcome /  Blog /  2018-11-doc 6 Practical guide to insolvency litigation

2018-11-doc 6 Practical guide to insolvency litigation

This book, Insolvency Litigation: A Practical Guide, indeed is practical guide. Two years after the publication of its first edition, the second edition is out. A group of contributors, led by the book’s editors Sarah McLennan and Adam Deacock provide a comprehensive commentary on the process, procedure and (litigious) issues faced by practitioners conducting insolvency related litigation. The second edition particularly was necessary given the changes in the UK of the Insolvency Rules 2016, and the new 2018-Practice Direction on Insolvency Proceedings. The editors claim that there is nothing else on the market that presents a similar packet of legal knowhow, filled with practical guidance to the most important court applications on this specialist area of insolvency practice. As a continental European, indeed, similar books in e.g. Germany, Belgium and the Netherlands are absent.
The treatment per theme is short but profound. In 26 chapters all matters on how to apply, who is allowed to apply, which court has jurisdiction, how to issue an application, evidence, case management, costs, preparing for hearings and appeals are touched upon, with clear references to the applicable law and rules throughout, and including references to over 1000 court cases. This is a clear reflection of a legal system build on precedents. Even the way judges are addressed, different for District judges and High Court judges, is explained. The result is a practical, focused coverage of the mechanics of litigation in insolvency proceedings, completely updated in line with the new Rules 2016 and 2018 practices.
Jurisdiction under the EU Insolvency Regulation 2105 is explained, be it without the working of the rather complex presumptions set out in Article 3 EIR 2015. It is argued that ‘any company’, in case its COMI is in the UK, can be wound up, with the exclusion of a Scottish company, whose COMI is in England and Wales. It must be wound up in Scotland. Because Article 120 Insolvency Act (as submitted) says so, or does the exclusion applies to all companies with registered seats in the EU?  Some 35 pages cover cross-border issues, with a combined treatment of the EIR 2015 and CBIR 2006, the English version of the UNCITRAL Model Law. Rightly, it clarifies that presently, as acknowledged  by the late 2017 version of the Chancery Guide, three sets of guidelines for cross-border court-to-court communications. A handy checklist of requirements for a recognition application under the CBIR finalises this chapter.  
The book provides detailed guidance on court practice and procedure and the principles of law relevant to insolvency litigation. Mediation in (pre-)insolvency conflicts as we see in pilots of several Dutch courts does not seem to have a role. Some more general topics are covered as well, such as funding of litigation by creditors or third parties and the position of an IOH, the duties owed to an IOH and how he or she can enforce these, conduction public or private examinations or how to challenge an IOH or the explanation of rules regarding prohibited names for businesses that are run by the same persons that were in charge of an insolvent company (‘phoenix companies’). In all, a detailed guidance of the whole armoury of aspects of litigation, including litigation against an insolvent defendant, limitation, costs and funding issues, litigation by office holders and their approach to litigation and the types of application that arise in insolvency cases.
The editors hope the book is a useful resource for the profession at large. I do not see a reason to doubt this, rather would like to signal professionals in other jurisdictions to take a good look at it and draft a similar guidance for their insolvency practices. The book concludes with an index, prepared using Sweet and Maxwell’s Legal Taxonomy, explaining: 'Readers may find some minor differences between terms used in the text and those which appear in the index.' Eh? Doesn’t this make the main text an obscure picture? Is this a ‘robot’ entering into the process of writing a manuscript for a book?

Sarah McLennan, Adam Deacock (eds.), Insolvency Litigation: A Practical Guide, 2nd Edition, Sweet & Maxwell, ISBN  9780414066366

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Note: this book I received free of charge from the publisher with the request to announce it or to review it on my blog at