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Lawrence Stephens secures rescission of winding-up order

Posted on: July 10th, 2025 by Natasha Cox

The Lawrence Stephens Restructuring and Insolvency team, represented by Associate Lefteris Kallou, have succeeded in making an application to rescind a winding-up order. This is a relatively rare order granted only in exceptional circumstances, and which is the subject of very few reported cases in England and Wales.

The order, made under Rule 12.59 and Schedule 5(3) of the Insolvency (England and Wales) Rules 2016, enabled our client (shareholder of the company) to regain control of his company from the Official Receiver and resume trading, thereby minimising the company’s exposure.

This matter involved several significant challenges:

Out-of-time application: We were instructed outside the strict five-business-day time limit for rescission applications. We successfully argued that exceptional circumstances justified the court exercising its discretion to allow the application to proceed.

Evidencing solvency post-winding-up: Despite a winding-up order having already been made, it was crucial to demonstrate that the company remained fundamentally solvent. We worked closely with the client to assess the company’s financials, debtor lists, and trading impact. We presented robust evidence, including up-to-date financial statements and management accounts, confirming the company’s ability to meet its debts.

Full discharge of unsecured creditors: A key condition was full repayment of the company’s unsecured creditors. In this case, all trade creditors had been discharged in advance of the hearing. The remaining creditor, HMRC (the petitioning creditor), had not confirmed up-to-date figures or bank details prior to the hearing. To provide the court with the necessary comfort, the client transferred £1.2 million into our client account to adequately cover the company’s HMRC liability. This allowed us to provide a solicitor’s undertaking to make full payment immediately upon HMRC’s confirmation.

Rare neutrality from the Official Receiver: Typically, where the petitioning creditor has not yet been paid (or where the petitioning creditor’s involvement has been limited), the Official Receiver will oppose rescission. In this case, however, the Official Receiver took the unusual step of remaining neutral – a significant factor in the court’s decision to grant the order.

Preventing receiver appointment by secured creditor: We engaged with Barclays, the secured creditor, to negotiate a temporary standstill pending the outcome of our client’s application. The delay in enforcement action prevented significant costs being incurred whilst preserving the company’s position during the interim.

Commenting on the case, Lefteris Kallou said “This matter presented a unique combination of procedural, evidential, and strategic challenges over a very short period of time. The court’s decision reflects both the strength of our client’s position and the structured approach we took in presenting it”.

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Supreme Court confirms the scope of Section 423 Insolvency Act 1986

Posted on: February 20th, 2025 by Natasha Cox

On 19 February 2025, the Supreme Court handed down its judgment in El-Husseiny and another v Invest Bank PSC which concerned itself with the construction of section 423 of the Insolvency Act 1986 (transactions defrauding creditors) (“Section 423”).

Section 423 is a powerful tool which provides recourse for creditors where a debtor transfers an asset for no consideration or at an undervalue for the purposes of putting the asset beyond the reach of creditors.

The fact that Section 423 is contained in the Insolvency Act 1986 is a red herring as it does not require the debtor to be insolvent or in an insolvency process to apply, and it can be brought by office-holders as well as a ‘victim of the transaction’. Furthermore, unlike other provisions in the Insolvency Act 1986, a transaction under Section 423 does not need to be within a specified period of time before the commencement of insolvency proceedings.

In the case of El-Husseiny the appellant attempted to argue that Section 423 could not apply as the property that was transferred belonged to a corporate vehicle and not himself. The Court disagreed and concluded that Section 423 is sufficiently wide to apply when a debtor causes their company to transfer the company’s assets at an undervalue, thereby resulting in the diminution of the value of the debtor’s shares. If this was not the case, it would prejudice a creditor’s ability to enforce a judgment against a debtor.

This judgment then went further and expanded the definition of ‘transaction, which is also found under sections 238 and 339 of the Insolvency Act 1986 (transactions at an undervalue with respect to administration, liquidation, and bankruptcy), thereby aligning the definition with Section 423. This was reached as it would be “impossible to think of circumstances in which a transaction was held to be within section 423(1) when it would also not appropriately fall within section 238 and 339” [para 64], and there is “no good reason for giving different meanings to transactions at an undervalue in section 238, 339 and 423” [para 72].

This is a welcomed decision for insolvency practitioners as they now appear to have greater scope from which to pursue debtors who may otherwise seek to hide behind corporate structures. It will also allow insolvency practitioners to look to set aside transactions under Sections 238, 339 and 423 even though the asset transferred was not beneficially owned by the debtor. We agree with the Court’s decision as had this decision not been reached, it would have undermined the purpose of Section 423.

The full judgment may be found here: https://www.supremecourt.uk/cases/uksc-2023-0080#judgment-details

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