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

On attraction from: [2019] EWCA Civ 112

This attraction raised questions of appreciable significance for firm regulation. It supplies the primary alternative for the Supreme Courtroom to think about the existence, content material and engagement of the so-called “creditor obligation”: the alleged obligation of firm administrators to think about, 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 brought on 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. Nonetheless, 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 would possibly 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 recuperate 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 obligation as a result of the administrators had not thought of or acted within the pursuits of AWA’s collectors. Each the Excessive Courtroom and the Courtroom of Enchantment rejected the creditor obligation declare. Within the judgment of the Courtroom of Enchantment, the creditor obligation didn’t come up till an organization was both really bancrupt, getting ready to insolvency or most likely headed for insolvency. Its provisional view was that the creditor obligation turned paramount as quickly as the corporate turned bancrupt. Since AWA was not bancrupt or getting ready to insolvency in Could 2009, BTI’s creditor obligation declare failed. BTI appealed to the Supreme Courtroom.

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

Problem 1: Is there a typical regulation creditor obligation 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 more than likely to advertise the success of the corporate for the advantage of its members as a complete. It codifies the long-established frequent regulation fiduciary obligation to behave in good religion within the pursuits of the corporate, implementing the suggestions of the Steering Group of the Division of Commerce and Business’s Firm Legislation Evaluation. The Supreme Courtroom held that, in sure circumstances, this obligation is modified by the frequent regulation rule that the corporate’s pursuits are taken to incorporate the pursuits of the corporate’s collectors as a complete.

Lord Briggs makes use of “creditor obligation” as a handy label for this modifying rule. Nonetheless, he agrees with Lord Reed that it’s in fact a side of the director’s obligation to the corporate, fairly than a free-standing obligation of its personal. Lord Reed and Woman Arden desire to explain the modifying rule as “the rule in West Mercia” after the main case.

The creditor obligation needs to be affirmed for the next causes. First, the obligation is supported by an extended line of UK case regulation. Second, the bulk maintain that the obligation is affirmed, or its doable existence is preserved, by part 172(3) of the 2006 Act. Third, the obligation has a coherent and principled justification. Collectors all the time have an financial curiosity within the firm’s belongings, 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 approach which takes collectors’ pursuits under consideration and seeks to keep away from prejudicing them.

Administrators owe their duties to the corporate, fairly than on to shareholders or to collectors. The creditor obligation is just not a free-standing obligation that’s owed to collectors.

Problem 2: Can the creditor obligation apply to a choice by administrators to pay an in any other case authorized dividend?

The Courtroom held that the creditor obligation can apply to a choice 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 regulation to the Opposite (see part 851(1)). For the reason that creditor obligation is a part of the frequent regulation and is acknowledged by part 172(3) of the 2006 Act, it isn’t excluded by Half 23. Second, a choice to pay a dividend that’s lawful beneath Half 23 should still be taken in breach of obligation.

Problem 3: What’s the content material of the creditor obligation?

The place the corporate is bancrupt, or bordering on insolvency, however is just not confronted with an inevitable bancrupt liquidation or administration, the administrators ought to think about the pursuits of collectors, balancing them towards the pursuits of shareholders the place they might battle. The better 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 should not required to think about 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 priceless curiosity within the firm.

Problem 4: When is the creditor obligation engaged? Was it engaged on the information of this case?

The creditor obligation was not engaged on the information of this case. It is because, on the time of the Could dividend, AWA was not really or imminently bancrupt, nor was insolvency even possible. The obligation 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 obligation is engaged when the administrators know, or must 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 obligation applies when the corporate is bancrupt or bordering on insolvency, or when an bancrupt liquidation or administration is possible. Nonetheless, they depart open the query of whether or not it’s important that the administrators know or must know that that is the case.

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