Subject-Matter Index

Active assistance. See Assistance to foreign court—discretion of Guernsey court

Administration orders. See COMPANIES (Administration orders)

Assistance to foreign court

discretion of Guernsey court

active assistance—may allow recognized foreign liquidator to contest interpleader proceedings in Guernsey to decide ownership of disputed assets, as preliminary to claiming assets to which company in liquidation entitled: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

inherent jurisdiction of Guernsey court

no inherent jurisdiction to extend foreign statutory bankruptcy procedure conferring powers on foreign trustee in bankruptcy to summon and examine witnesses to help trace Guernsey assets, based on combination of usefulness, generous view of analogy with Guernsey legislation, and reliance on “modified universalism” in insolvency law: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

letter of request

Guernsey court to assist English courts pursuant to Insolvency Act 1986, s.426 (applicable in Guernsey by Insolvency Act 1986 (Guernsey) Order 1989) unless compelling reason not to do so—court may apply insolvency law of Guernsey and of England and Wales so far as corresponds to Guernsey insolvency law: Batty v. Bourse Trust Co. Ltd. (Royal Ct.), 2017 GLR 54

letter of request from English court under Bankruptcy Act 1914, ss. 122–123, or Insolvency Act 1986, s.426, seeking assistance of Royal Court in enabling English trustee in bankruptcy to examine witnesses and documents in tracing bankrupt’s Guernsey assets enables Royal Court to exercise own jurisdiction and English jurisdiction—preferable to “conjuring up” dubious inherent jurisdiction of Royal Court to achieve same ends: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

Companies. See COMPANIES (Compulsory winding up—assets available for distribution), (Compulsory winding up—role of GFSC), (Liquidators—discharge and release), (Voluntary winding up—assets available for distribution)

Cross-border insolvency

assistance to foreign court

English joint trustees in bankruptcy recognized in Guernsey—as debtor’s Guernsey assets already arrested and sold by H.M. Sheriff in Guernsey désastre proceedings, proceeds no longer part of debtor’s estate—trustees in bankruptcy not entitled to them: In re Douglass (Royal Ct.), 2017 GLR 234

discretion of Guernsey court

guiding principles

universalism in insolvency proceedings to be implemented insofar as compatible with rules on forum conveniens—preferable for single system to control liquidation irrespective of location of assets and creditors, with active assistance of foreign courts recognizing appointment of liquidator: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

inherent jurisdiction of Guernsey court

letter of request

stay of Guernsey proceedings

in giving active assistance to recognized foreign liquidator, no automatic stay of existing Guernsey interpleader proceedings—court has discretion how to give assistance—may continue interpleader proceedings to allow determination of ownership of assets disputed in foreign liquidation: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

Désastre

company declared en désastre. See COMPANIES (Désastre)

effect of arrest and sale of assets

once debtor’s assets arrested and sold, H.M. Sheriff holds proceeds of sale for désastre proceedings—proceeds no longer part of debtor’s estate—joint trustees in bankruptcy appointed in England after sale recognized in Guernsey but not entitled to proceeds: In re Douglass (Royal Ct.), 2017 GLR 234

Distribution of company’s assets. See COMPANIES (Compulsory winding up—distribution of assets)

Dividends. See COMPANIES (Compulsory winding up—assets available for distribution), (Voluntary winding up—assets available for distribution)

Fraudulent dispositions

defrauding creditors

payment by company to parent company, for which company received no consideration, void pursuant to Insolvency Act 1986, s.423 as made with intention of putting assets beyond reach of creditors—no direct statutory equivalent in Guernsey but similar relief available (e.g. by Pauline action): Batty v. Bourse Trust Co. Ltd. (Royal Ct.), 2017 GLR 54

Pauline action

action creditor can bring to set aside disposition in fraud of creditor—no resulting entitlement to compensation—requirements: (a) person bringing Pauline action must have been creditor at time of transaction; and (b) creditor must show debtor’s insolvency (balance sheet test) at time or as result of transaction—person may be creditor if facts giving rise to claim pre-date transaction, even if creditor status is not established at that time—suffices that intention to defraud was substantial purpose of transaction—possible defences include unjust continuing enrichment and change of position: Flightlease Holdings (Guernsey) Ltd. v. Intl. Lease Finance Corp. (Royal Ct.), 2005–06 GLR N [11]

may be allowed even though creditor has submitted in proofs of debt claims based on facts supporting actions in contract and fraudulent misrepresentation: Flightlease Holdings (Guernsey) Ltd. v. Intl. Lease Finance Corp. (Royal Ct.), 2005–06 GLR N [11]

Fund ascertainment principle. See COMPANIES (Compulsory winding up—assets available for distribution), (Voluntary winding up—assets available for distribution)

Legislation in force

Guernsey personal insolvency legislation

Loi ayant rapport aux Débiteurs et à la Rénonciation 1929 and Ordonnance relative à la Rénonciation give wide powers to Law Officers to investigate possibility of fraud but not powers to discover information about Guernsey debtor’s affairs or to administer insolvency regime—court has no inherent jurisdiction to make statutory powers available to English trustee in bankruptcy by analogy: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

UK bankruptcy and insolvency legislation

registration—registration in Guernsey by local Order-in-Council may only be for information, without operative effect—to be operative, statute to be made applicable to Guernsey by own terms or applied by UK Order-in-Council, e.g. registration in Guernsey of Bankruptcy Act 1914 only for information but mutual assistance provisions (ss. 122–123) applicable to Channel Islands by own terms—Insolvency Act 1986, s.426 applies to Channel Islands by own terms and also by Insolvency Act 1986 (Guernsey) Order 1989: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

repeal—if UK Act applied to Guernsey, repeal for purposes of UK may not repeal operation in Guernsey which may need to be explicit: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

Modified universalism. See Assistance to foreign court—inherent jurisdiction of Guernsey court. Cross-border insolvency—inherent jurisdiction of Guernsey court

Pre-pack administrations

guidance

“SIP 16” reports of great assistance to court and should be produced in pre-pack administration order cases, though not required by statute, unless overwhelming reasons not to: In re Esquire Realty Holdings (Royal Ct.), 2014 GLR 77

Rule against double proof. See COMPANIES (Compulsory winding up—assets available for distribution), (Voluntary winding up—assets available for distribution)

Transactions at undervalue

Insolvency Act 1986, s.238

payment by company to parent company, for which company received no consideration, as trial run before larger payment made, void pursuant to Insolvency Act 1986, s.238 as transaction at undervalue—no direct statutory equivalent in Guernsey but similar relief available (e.g. by Pauline action): Batty v. Bourse Trust Co. Ltd. (Royal Ct.), 2017 GLR 54

Unlawful distributions

dividends

payment of dividend unlawful distribution (for purposes of Part 23 of Companies Act 2006, similarly Companies (Guernsey) Law 2008, s.304(1)) if afterwards company did not satisfy solvency test: Batty v. Bourse Trust Co. Ltd. (Royal Ct.), 2017 GLR 54