BTI 2014 LLC v Sequana SA and others [2022] UKSC 25 – UKSCblog

On enchantment from: [2019] EWCA Civ 112

This enchantment raised questions of appreciable significance for firm legislation. It offers the primary alternative for the Supreme Courtroom to contemplate the existence, content material and engagement of the so-called “creditor responsibility”: the alleged responsibility of firm administrators to contemplate, or to behave in accordance with, the pursuits of the corporate’s collectors when the corporate turns into bancrupt, or when it approaches, or is at actual threat of, insolvency.

In Could 2009, the administrators of an organization known as AWA triggered it to distribute a dividend of €135 million to its solely shareholder, the respondent. This extinguished virtually the entire of a bigger debt which the respondent owed to AWA. On the time the Could dividend was paid, AWA was solvent. Nevertheless, it had long-term pollution-related contingent liabilities of an unsure quantity and an insurance coverage portfolio of an unsure worth. There was an actual threat that AWA may grow to be bancrupt sooner or later, although insolvency was not imminent, and even possible.

AWA went into bancrupt administration virtually ten years later, in October 2018. The appellant, BTI 2014 LLC, is the assignee of AWA’s claims. BTI sought to get better the quantity of the Could dividend from AWA’s administrators. It argued that the administrators’ determination to distribute the Could dividend was taken in breach of the creditor responsibility as a result of the administrators had not thought-about or acted within the pursuits of AWA’s collectors. Each the Excessive Courtroom and the Courtroom of Attraction rejected the creditor responsibility declare. Within the judgment of the Courtroom of Attraction, the creditor responsibility didn’t come up till an organization was both truly bancrupt, on the point of insolvency or most likely headed for insolvency. Its provisional view was that the creditor responsibility turned paramount as quickly as the corporate turned bancrupt. Since AWA was not bancrupt or on the point of insolvency in Could 2009, BTI’s creditor responsibility declare failed. BTI appealed to the Supreme Courtroom.

HELD – Attraction unanimously dismissed. All members of the Courtroom agree that AWA’s administrators weren’t on the related time beneath an obligation to contemplate, or to behave in accordance with, the pursuits of collectors within the circumstances of this enchantment.

Situation 1: Is there a standard legislation creditor responsibility in any respect?

Part 172(1) of the 2006 Act requires administrators to behave in the way in which they think about, in good religion, can be most definitely to advertise the success of the corporate for the advantage of its members as an entire. It codifies the long-established frequent legislation fiduciary responsibility to behave in good religion within the pursuits of the corporate, implementing the suggestions of the Steering Group of the Division of Commerce and Trade’s Firm Legislation Assessment. The Supreme Courtroom held that, in sure circumstances, this responsibility is modified by the frequent legislation rule that the corporate’s pursuits are taken to incorporate the pursuits of the corporate’s collectors as an entire.

Lord Briggs makes use of “creditor responsibility” as a handy label for this modifying rule. Nevertheless, he agrees with Lord Reed that it’s in reality a facet of the director’s responsibility to the corporate, relatively than a free-standing responsibility of its personal. Lord Reed and Woman Arden want to explain the modifying rule as “the rule in West Mercia” after the main case.

The creditor responsibility must be affirmed for the next causes. First, the responsibility is supported by an extended line of UK case legislation. Second, the bulk maintain that the responsibility is affirmed, or its potential existence is preserved, by part 172(3) of the 2006 Act. Third, the responsibility has a coherent and principled justification. Collectors at all times have an financial curiosity within the firm’s property, however the relative significance of that financial curiosity will increase the place the corporate is bancrupt or nearing insolvency. In these circumstances, the administrators ought to handle the corporate’s affairs in a manner which takes collectors’ pursuits into consideration and seeks to keep away from prejudicing them.

Administrators owe their duties to the corporate, relatively than on to shareholders or to collectors. The creditor responsibility shouldn’t be a free-standing responsibility that’s owed to collectors.

Situation 2: Can the creditor responsibility apply to a call by administrators to pay an in any other case authorized dividend?

The Courtroom held that the creditor responsibility can apply to a call by administrators to pay a dividend which is in any other case lawful, for 2 causes. First, Half 23 of the 2006 Act is topic to any rule of legislation to the Opposite (see part 851(1)). For the reason that creditor responsibility is a part of the frequent legislation and is acknowledged by part 172(3) of the 2006 Act, it isn’t excluded by Half 23. Second, a call to pay a dividend that’s lawful beneath Half 23 should be taken in breach of responsibility.

Situation 3: What’s the content material of the creditor responsibility?

The place the corporate is bancrupt, or bordering on insolvency, however shouldn’t be confronted with an inevitable bancrupt liquidation or administration, the administrators ought to think about the pursuits of collectors, balancing them in opposition to the pursuits of shareholders the place they might battle. The higher the corporate’s monetary difficulties, the extra the administrators ought to prioritize the pursuits of collectors.

The pursuits of collectors are the pursuits of collectors as a normal physique. The administrators usually are not required to contemplate the pursuits of explicit collectors in a particular place. The place an bancrupt liquidation or administration is inevitable, the collectors’ pursuits grow to be paramount because the shareholders stop to retain any helpful curiosity within the firm.

Situation 4: When is the creditor responsibility engaged? Was it engaged on the information of this case?

The creditor responsibility was not engaged on the information of this case. It is because, on the time of the Could dividend, AWA was not truly or imminently bancrupt, nor was insolvency even possible. The responsibility doesn’t apply solely as a result of the corporate was at an actual and never distant threat of insolvency.

The bulk maintain that the creditor responsibility is engaged when the administrators know, or should know, that the corporate is bancrupt or bordering on insolvency, or that an bancrupt liquidation or administration is possible. Lord Reed and Woman Arden agree that the responsibility applies when the corporate is bancrupt or bordering on insolvency, or when an bancrupt liquidation or administration is possible. Nevertheless, they go away open the query of whether or not it’s important that the administrators know or should know that that is the case.

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