Top Five Claims Against Administrators

As will be seen from the cases that follow, entry on this list is not (and is not intended to be) dependent upon the level of damages recovered, or even upon the claimant attaining a successful outcome. Rather, it is dependent upon the quality of the judgment given, having regard to the level of understanding and appreciation that can be gleaned from it of the issues and complexities that inhabit this area of the law.

Background

Charnley Davies Ltd (‘CDL’) was one of 17 companies in the Charnley Davies group which collapsed in January 1987. CDL carried on an insurance broking business, while other companies in the group provided fund management, property investment and financial services.

On 16 January 1987 Mr Richmond was appointed administrator of CDL and of 12 other companies in the group. Very shortly after taking office, the administrator was advised by the CEO of CDL that the goodwill of the business would not last very long, especially if the brokers and their staff left the company’s employ, and that his ability to sell the business depended upon the insurance companies keeping their agency agreements with CDL alive until a sale had been effected.

On 24 January 1987, and having previously placed an advertisement in the Financial Times for the sale of CDL, the administrator wrote to all interested parties inviting unconditional offers by 27 January 1987. However, upon the expiry of that deadline, the only offers received were those supported by CDL’s own brokers and he decided to accept them.

On 28 and 29 January 1987 the administrator exchanged contracts for the immediate sale of CDL’s businesses and, in the process, obtained a total purchase price of £50,000 for the goodwill and £7,500 for the furniture and equipment.

A claim was then presented against the administrator on 30 March 1987 by 11 major insurance companies, all of whom were creditors of CDL. In due course, leave was given to amend the claim by joining CDL as second defendant and by adding a claim for an order that the administrator pay compensation to CDL for any damage it had sustained as a result of the sales he had effected.

Allegations

By the time that the matter came to trial, the claim against the administrator was confined to the assertion that he had acted negligently in failing to enlist the support and assistance of the claimants, not because they were creditors, but because as leading insurance companies they had relevant knowledge and expertise and their attitude could affect the time at the administrator’s disposal and the success of the sale.

Considerations

In determining the claim, Mr Justice Millett made the following observations:

• An administrator is under a common law duty to a company over which he is appointed to obtain a proper price for its assets;
• The duty of an administrator to obtain a proper price for a company’s assets is not absolute, but only to take reasonable care to do so. In turn, this meant that an administrator must obtain the best price that circumstances, as he reasonably perceives them to be, permit and he is not to be made liable because his perception is wrong, unless it is unreasonable;
• An administrator is to be judged not by the standards of the most meticulous and conscientious member of his profession, but by those of an ordinary, skilled practitioner;
• When the claimants launched their claim against the administrator, they (wrongly) believed that he was managing the affairs of CDL in a manner which disregarded their interests and those of the creditors generally, which was a perfectly proper complaint to bring under section 27 of the Insolvency Act 1986 (which provisions are now contained within paragraph 74 of Schedule B1 of the Insolvency Act 1986);
• However, as the claimants’ claim developed into one of professional negligence, it raised a different issue, viz. misconduct by the administrator, rather than his unfairly prejudicial management;
• By persisting in their claim under section 27, the claimants had not only adopted the wrong procedure, but had also undertaken the burden of establishing that the sale of CDL’s assets at an undervalue (whether or not due to negligence) was due to the administrator’s management of CDL’s affairs in a manner that was prejudicial to their interests.

Decision

Based on these observations and the evidence before the court, Mr Justice Millett found that the administrator had not acted negligently or with undue haste in selling the businesses when he did. Nor had the claimants established that the administrator had realised less than the fair value of CDL.

He further held that while it was unnecessary to decide the remaining question, viz. whether a sale of the company’s assets by an administrator at a negligent undervalue is sufficient, without more, to establish a claim to relief under section 27, he expressed the view that it was not.

Background 

The partnership of J & H Kyrris had operated thirteen restaurants under franchise from Burger King. However, by April 1997 it had encountered financial difficulties and become insolvent. On 28 April 1997, and upon a petition by the Royal Bank of Scotland, an administration order was made against it.

After taking office the administrators carried on the partnership business with a view to selling it as a going concern, which they eventually did in November 1998.

On 30 July 2001 the administrators applied for the discharge of the administration order and for their release, together with an order winding up the partnership. However, the day before that application was heard, applications were made by Mrs Kyrris and Mr Royle opposing the discharge and making equitable charge claims.

Allegations

In due course both Mrs Kyrris and Mr Royle commenced claims against the administrators. Both alleged that the partnership had previously created equitable charges in their favour and that the administrators had failed to account to them individually as secured creditors. In addition, and in the alternative, both sought to allege that the administrators owed a duty of care in negligence and/or a fiduciary duty to them as creditors of the partnership, to take reasonable care to ensure that their interests and those of other creditors were protected. They further alleged that the administrators had breached these duties in various respects, including by selling the partnership’s assets at an undervalue and through mismanagement of its business affairs.

Upon the application of the administrators to strike out the claims, HH Judge Behrens ordered that the equitable charge claims be allowed to continue, but that the claims based on the duties allegedly owed to the claimants as unsecured creditors would not. The administrators appealed and the claimants cross-appealed.

Considerations

In giving the leading judgment in the Court of Appeal, Lord Justice Parker observed that:

• The court had only limited evidence of the circumstances surrounding the alleged creation of an equitable charge in favour of Mrs Kyrris;
• The evidence that was available to the court was sufficient to raise a real possibility that an equitable charge was created in favour of Mrs Kyrris;
• Whether or not the administrators received notice of Mr Royle’s claim was an issue of fact to be decided at trial;
• It was arguable that an equitable charge had been created in favour of Mr Royle;
• In the leading judgment given by Lord Justice in Mummery Peskin v Anderson (2001) it had been confirmed that while the directors of a company could owe fiduciary duties to the shareholders in addition to the fiduciary duties they owed to the company by virtue of their office, that would be dependent upon establishing a special factual relationship between the directors and the shareholders;
• The position of an administrator appointed under the Insolvency Act 1986 vis-à-vis creditors, is directly analogous to that of a director vis-à-vis shareholders;
• Absent a special relationship, an administrator owes no general duty to creditors.

Decision

Accordingly, the court dismissed both the appeal and the cross-appeal and, in the process, confirmed that there is no actionable duty of care generally owed at common law (whether arising in tort or as a fiduciary) by an administrator to an individual creditor. Any such duty that does arise will necessitate special circumstances.

Background

Mr Berntsen and Mr Richardson had decided to purchase and redevelop the Coniston Hotel at Sittingbourne in Kent and together, they formed a limited liability partnership called Coniston Hotel (Kent) LLP (‘LLP’).

Working capital for the project was provided by Mr Berntsen and Mr Richardson (‘Members’) and by various loan facilities provided by NatWest Bank (‘Bank’). However, by June 2010 the Bank had confirmed that it would not release the further funds required to complete the development without additional security.

On behalf of the LLP, the Members then appointed Ms Rayment and Mr Tait as individual insolvency practitioners practising from the offices of BDO Stoy Hayward. On the advice of Mr Tait an additional valuation of the hotel was obtained from Knight Frank, which reported that it was worth much less than the Members claimed. In response, the Bank refused to provide any further funding and on 22 June 2010, Ms Rayment and Mr Tait were appointed joint administrators of the LLP.

On 1 August 2011 the Members commenced claims against the joint administrators. In doing so, the Members sought an order that Ms Rayment and Mr Tait should cease to act as joint administrators, that the administration be ‘discharged’ and that the costs of the administration should be borne by them personally. In the event, before those proceedings were determined and upon a winding up order being made against the LLP, the joint administrators were discharged from office. However, that was subject to the claims commenced by the Members, which were allowed to continue.

Allegations

In due course, and in their Points of Claim, the Members confirmed that they were seeking to recover compensation/loss/damages from the joint administrators occasioned by their breach of fiduciary duty of and/or negligence, under both paragraph 74 and paragraph 75 of Schedule B1 of the Insolvency Act 1986.

In response, the joint administrators applied for an order either striking out the claims or granting summary judgment to them.

Considerations

In determining the application, Mr Justice Norris observed that:

• For the purposes of paragraph 74, the application is brought by reference to the applicant’s standing as ‘a creditor or member’ and is directed to the protection of his interests as such. The primary relief is directed to regulating the conduct of the administration itself;
• Paragraph 74 does not exist to enable individually disgruntled creditors to pursue administrators for compensation. Its focus is ‘unfair harm’, being unequal or differential treatment to the disadvantage of the applicant (or applicant class) which cannot be justified by reference to the interests of the creditors as a whole or to achieving the objective of the administration;
• Paragraph 75 is concerned with wrongful conduct of the administrator in relation to the company or the LLP, which can be pursued by an office holder, a creditor or a contributory;
• The court cannot order the wrongdoing administrator to pay equitable compensation for breach of fiduciary duty or damages for breach of some other duty to an individual creditor or to a contributory. If there is a deficiency in the insolvency then the payment goes for the benefit of the creditors as a class: and if the company proves solvent in administration then the benefit goes to the contributories as a class;
• The proceedings confused claims by Mr Berntsen and Mr Richardson for personal losses caused to them by the alleged professional negligence of Ms Rayment and Mr Tait prior to 22 June 2010, with claims for harm suffered by them as members or creditors of the LLP because of the alleged failure of the joint administrators to act in accordance with the duties imposed on them by Schedule B1 of the Insolvency Act 1986;
• The fact that the LLP had since entered liquidation, did not preclude a claim issued under paragraph 74 during the period of administration from being pursued.

Decision

In turn, the court held that while Mr Berntsen’s and Mr Richardson’s personal claims for loss/damages/equitable compensation for breach of fiduciary duty and/or negligence were not properly advanced, the balance of their claims as creditors or members under paragraphs 74 and 75 of Schedule B1 would not be struck out or made subject to an order for summary judgment and could continue.

Background

Ms Davey was the sole shareholder and the sole director of Angel House Developments Limited (‘AHDL’). She was also the guarantor of its indebtedness to Dunbar Assets plc (‘Dunbar’) to the extent of £1.6 million, plus interest and costs.

In 2007 AHDL acquired Angel House, a four-story commercial office property located in Docklands, London. The acquisition was funded by a loan facility with Dunbar, who was granted a legal charge over Angel House.

In due course AHDL submitted a planning application to redevelop Angel House into a residential tower with hotel, office and retail space. However, the planning process encountered various difficulties and delay and, in the meantime, AHDL defaulted on its borrowing covenants.

On 27 December 2012 Dunbar appointed Mr Money and Mr Stewart-Koster as joint administrators of AHDL. In turn, and at the instigation of Dunbar, the administrators appointed Alliance Property Asset Management Limited (‘APAM’) to undertake (i) the day-to-day property management of Angel House, (ii) the asset management of Angel House to maximise its rental income, (iii) the management of the ongoing planning application, (iv) the positioning of the property for sale, and (v) the management of the marketing and sales process.

Initially the administrators considered that the best result would be achieved by continuing to trade AHDL and by securing planning permission before disposing of Angel House. However, that strategy later changed in response to certain events and in favour of an immediate disposal.

Although Ms Davey expressed an interest in purchasing Angel House and redeeming Dunbar’s loan, she was unable to provide the funding assurances required by the administrators within the timeframe stipulated. As a result, Angel House was sold to Cubitt Property Holdings Limited for £17.05 million on 19 December 2013. In turn, Dunbar received £15,978,011.86 from the proceeds of the sale in part payment of its loans.

Litigation then followed. On 31 January 2014 Dunbar issued a claim against Ms Davey seeking to recover the costs of enforcing her personal guarantee. On 18 July 2014 Ms Davey issued a claim against the administrators under paragraph 75 of Schedule B1 of the Insolvency Act 1986. On 7 November 2014, and having taken an assignment of rights of action from the liquidator of AHDL, Ms Davey was given permission to amend her defence to Dunbar’s claim for the purposes of adding a counterclaim. On 9 February 2015 the court ordered that the two matters be heard together.

Allegations

As regards the claim against the administrators, Ms Davey alleged that they had acted in breach of duty in:

• Rejecting the objectives of rescuing AHDL or achieving a better result for ADHL’s creditors as a whole, when determining their approach to the administration;
• Seeking advice on the sale of Angel House from APAM, which was neither independent nor suitably experienced;
• Failing to obtain a proper price for Angel House;
• Failing to explore and pursue a funded rescue for AHDL; and
• Failing to exercise their own independent judgment in the conduct of the administration.

In relation to Dunbar, Ms Davey alleged that it:

• Was liable for any breaches of duty by the administrators by reason of its interference in the conduct of the administration;
• Was liable in damages for procuring breaches of duty by the administrators;
• Was liable in damages for conspiring with APAM to injure AHDL and/or Ms Davey by unlawful means;
• Acted in bad faith towards Ms Davey or so as to prejudice Ms Davey in such a way as to cause her personal guarantee to be discharged.

Considerations

In determining the allegations before the court, and in his 173-page judgment, Mr Justice Snowdon observed that:

• An administrator is required to have regard to the interests of all of the company’s creditors, and he can only limit his ambition to seeking to realise assets to repay the secured creditor if he thinks that it is not reasonably practicable to achieve anything else. But even then, he must not unnecessarily harm the interests of the creditors as a whole;
• An administrator’s decision not to pursue a rescue of the company as an objective will only be open to challenge if it was made in bad faith or was clearly perverse;
• The more deferential standard of review of the decision of the administrator as to which objective to pursue does not also extend to the methods adopted by the administrator to pursue his chosen course;
• Seeking information and the views of the directors and shareholders as to the prospects for the company may well be a sensible step in most cases. However, there can be no ‘fundamental’ rule requiring the administrator in every case to go through a process of consultation with the directors and shareholders, still less that he should seek their ‘confirmation’ that rescue of the company as a going concern is not feasible;
• There was no absolute requirement for a competitive selection process or ‘beauty parade’ to be carried out prior to appointment of administrators or their agents;
• There was no hard and fast legal rule prohibiting the appointment by administrators of agents who had been recommended by a secured creditor: the essential question being whether the agents to be appointed were competent and able to discharge their fiduciary duties;
• While administrators are subject to (i) the fiduciary duties of agents to act in good faith, loyally and for proper purposes, and (ii) a duty to exercise the level of skill and care of an ordinary, skilled practitioner, they are not generally subject to the wider and more onerous duties in relation to sales of property imposed upon trustees;
• An administrator is entitled to have regard to his own experience of a candidate firm when deciding who to engage as selling agents and, in a case in which it is doubtful or uncertain whether the sale price will exceed the secured debt, the administrator must be entitled to take into account the views of the secured creditor as to the identity of any agent who will be engaged to assist in the sale process;
• Administrators could not be liable to a company in negligence if they reasonably relied upon advice from an agent that appeared competent;
• It must be a question of fact in each case, depending upon the nature of the asset and the relevant market, as to whether, and if so, what type of marketing is required to discharge the administrator’s duty to take reasonable care to obtain the best price for an asset;
• An administrator must exercise independent judgment. He must not simply allow another person to dictate to him how he should exercise his powers as administrator. Nor should he unquestioningly act in accordance with the wishes of another;
• An administrator is entirely at liberty to consult with those creditors whose interests are likely to be affected by the decisions he takes to ascertain their views, and in many cases it will be entirely sensible that he should do so;
• The leading authority on the nature and scope of fiduciary duties remained the decision of the Court of Appeal in Bristol and West Building Society v Mothew (1998);
• There is no deemed agency in favour of the company, that would prevent the court from finding, where appropriate, that an administrator was acting as agent of the secured creditor, so that the secured creditor could be held liable for any breach of duty to the company or others interested in the equity of redemption;
• To justify a finding of an agency relationship required that the administrator should either have been compliant with directions given by the secured creditor, or to have been unable to prevent some interference with his intended conduct of the administration;
• A third party could not, as a matter of law, be liable in tort for causing an administrator to breach his fiduciary duties to a company, because the law does not recognise such a tort;
• A third party could be liable in tort for procuring a breach of statutory duty or breach of a duty of care by administrators, but this would require both knowledge on the part of the defendant that he was inducing a breach of duty, and an intention to procure that breach;
• An unlawful means conspiracy is committed where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so.

Decision

In the circumstances of this case, the court found that there had been no breach of duty by the joint administrators, who had acted independently and reasonably relied on the advice from APAM. Further, there had been no wrongdoing on the part of Dunbar, which was entitled to enforce the personal guarantees that Ms Davey had given to it. Accordingly, both Ms Davey’s claim and counterclaim were dismissed.

Background

Ary Digital UK Limited (‘ADUL’) was part of a group of companies and a broadcaster of customised streaming content for the Southeast Asian community in the UK. To facilitate its broadcasts, ADUL acquired Electronic Programming Guides (‘EPGs’) on a fixed-term basis from British Sky Broadcasting Ltd (‘BSB’). These enabled it to provide a digital display menu, listing current and upcoming television programmes on its channels.

By 2011 ADUL was in financial difficulty and at this time it was introduced to Mr Iqbal, a licensed insolvency practitioner and founding partner at Cooper Young. Mr Iqbal was subsequently appointed as adviser to ADUL and, based on his advice, ADUL entered into administration with the aim of achieving a better result for the creditors as a whole than would be achieved if ADUL was wound up.

Once appointed as administrator, Mr Iqbal instructed Edward Symmons to advertise ADUL’s assets for sale, including the EPGs for which he had agreed a provisional sale price with the directors of £40,000. Although the advertisement was to run for a period of 12 days, Mr Iqbal instructed Edward Symmons after only 8 days to sell the EPGs to the directors for £40,000, in addition to various other assets.

While Mr Iqbal relied on the fact that the directors were the only parties interested in the EPGs and that he was concerned not to lose them, no evidence was advanced at trial to justify this concern. Moreover, Mr Iqbal had not obtained any prior independent evidence to confirm the value of the EPGs and had instead relied upon comments from ADUL’s accountant and directors.

Following the sale, Mr Iqbal submitted a written report to creditors in which he recommended that ADUL enter into a creditors voluntary liquidation and that he be appointed as liquidator. However, at a subsequent meeting of creditors in July 2011, those proposals were rejected and ADUL was instead wound up following the appointment of alternative joint liquidators.

As the joint liquidators of ADUL, Richard Brewer and Mark Wilson were subsequently granted permission, pursuant to paragraph 75(6) of Schedule B1 of the Insolvency Act 1986, to examine the conduct of Mr Iqbal while acting as administrator.

Allegations

Amongst other matters, the joint liquidators alleged that in disposing of the EPGs Mr Iqbal had acted negligently and/or in breach of his equitable duty of care by:

• Failing to obtain the best price for the EPGs;
• Failing to obtain proper valuation evidence;
• Accepting a valuation provided by the directors and/or their accountant;
• Acquiescing in a very short marketing campaign.

The joint liquidators further alleged that Mr Iqbal had acted in breach of his fiduciary duty by acting in some capacity for the directors of ADUL in connection with the sale of the EPGs, which had been agreed prior to the administration.

Considerations

In determining the claim, Chief Insolvency and Companies Court Judge Briggs observed that:

• In his judgment in the Court of Appeal in Bristol & West Building Society v Mothew (1981), Lord Millett gave what has now become the accepted exposition of the law concerning fiduciaries, when he explained that…‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary…’
• While the duty to act for a proper purpose has been developed primarily in cases concerning the powers of express trustees and company directors, it also applies to insolvency office-holders;
• The present law, borne out of the rule in Re Hastings-Bass (Deceased) (1975), is that a fiduciary is under a duty to take account of relevant and not irrelevant matters, when exercising a power in that capacity;
• The parties were agreed that Mr Iqbal, in the office of administrator, owed a co-existent common law and equitable duty of care to ADUL;
• The principle that a trustee who relies upon apparently competent advice should not be liable if that advice turns out to be wrong, unless the decision which he takes is outside the scope of his powers or contrary to the law, applied equally to an administrator;
• In his report to creditors, Mr Iqbal had advised that his agents had been able to sell the assets of ADUL for £57,000 against an estimate of £6,000 if ADUL was wound up, notwithstanding that he had not received any such estimate;
• In his report to creditors, Mr Iqbal had represented that Edward Symmons had estimated that the EPGs might realise ‘£10,000 in situ or £4,000 ex situ’, when in fact these were estimates provided by the directors of ADUL;
• Mr Iqbal had by his own admission failed to appreciate the applicability of Statement of Insolvency Practice 16 (SIP 16) – Pre-packaged Sales In Administrations, and had failed to have any regard to Statement of Insolvency Practice 13 (SIP 13) – Disposal of Assets To Connected Parties;
• Mr Iqbal had not enquired about the level of knowledge that Edward Symmons had of EPGs or how dated their experience was;
• The advertisement for ADUL’s assets failed to refer to the EPGs, failed to refer to the channel numbers that were for sale, failed to refer to the likely audience numbers available on each of those channels or other special features and failed to refer to the use of the EPGs by the wider group of companies;
• Mr Iqbal had obtained a valuation of the EPGs after the sale, but only on an informal ‘desktop’ basis and only so that he could address any concerns that the creditors might express about the value he had achieved;
• Based on the expert valuation evidence, it appeared that Mr Iqbal could have achieved a sale price of £743,750 for the EPGs;
• Equitable compensation is generally assessed at the point of judgment and with the benefit of hindsight, so that foreseeability has no part to play and the creditors, acting through the joint liquidators, are not required to mitigate loss.

Decision

In turn, the court held that Mr Iqbal had been negligent in various respects, including as a result of his failure to recognise that the directors could not provide independent advice to him on timing, advertisement, price or any matter concerning ADHL and its assets.

The court also concluded that Mr Iqbal had breached his fiduciary duties by, amongst other matters, preferring the interests of the other companies within the group over those of ADUL itself.

Finally, it ordered that Mr Iqbal should pay equitable compensation in the sum of £743,750 to ADUL as a result of his breaches of fiduciary duty.