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Fraud Updates
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Fraud Updates 2010
10 November
There are two recently reported decisions that will be of particular interest to victims of corporate fraud and fraud lawyers which may have some bearing on the question of enforcement against the assets of the fraudster.
Recognition of Foreign Insolvency Proceedings
There has been some concern about the reluctance of the English Courts to recognise and assist appointees in foreign insolvency proceedings when they seek its assistance and co-operation pursuant to the Cross-Border Insolvency Regulations 2006 ("the Regulations"). This might now be alleviated by a recent decision of the Court of Appeal in David Rubin and Anor (Joint Receivers and Managers of Consumers Trust) v Eurofinance S.A & Others [2010] EWCA Civ 895.
The case concerned the enforcement of judgments in Chapter 11 proceedings commenced in New York and the recognition of the appointment of Foreign Representatives by the Court in New York with specific powers to apply to and seek the assistance of the English Court to enforcement those judgments.
The Court of Appeal judgment upholds the first instance court's decision to recognise the Chapter 11 proceedings as a foreign main proceedings and the appointment of the Foreign Representatives. Further concludes that the judgments from the Chapter 11 proceedings are central and integral to that process, are for the collective benefit of the creditors, and should be enforced irrespective of whether the defendants are subject to the jurisdiction of the Court in New York.
To read more please click here.
Committing a Director for a Company's Contempt
The recent Commercial Court decision of Mr Justice Blair in the case of Munib Masri v Consolidated Contractors International and others [2010] EWHC 2458 (Comm) considers the circumstances where an individual may be subject to a committal application for a company's failure to comply with court orders and contempt even though he is (a) not a registered officer of the company, and (b) not specifically served and named in a penal notice.
The decision dismisses an application to strike out an application for committal. Although it makes no determination on an application for committal it concludes that the existence of certain circumstances may make it possible to commit to prison an individual who is (a) the controlling mind rather than registered officer of a judgment debtor company and (b) has not been specifically served with and named in, but is on notice of a penal notice in respect of that company's failure to comply a court order.
This is a particularly helpful decision given that many fraudsters seek to protect themselves by hiding behind corporate structures with nominee officer holder.
To read more please click here.
| March 2011 | October 2010 |