Section title 1 Brexit: Where are we going? Recognition and enforcement during Risky Business Jersey Update 2018 transition and beyond Unpacking “pre-pack” Recent developments administrations Paul Heath QC Shut Up? New Associate Member Privilege and company dissolution A regular review of news, cases and www.southsquare.com articles from South Square barristers SOUTH SQUARE DIGEST June 2018 www.southsquare.com ‘The set is highly regarded internationally, with barristers regularly Company/Insolvency set of the year, winner 2017 appearing in courts CHAMBERS BAR AWARDS Insolvency set of the year, around the world.’ shortlisted 2017 CHAMBERS UK LEGAL 500 BAR AWARDS +44 (0)20 7696 9900 | [email protected] | www.southsquare.com In this issue 3 In this issue 06 22 44 Brexit: where are we going? Jersey Update 2018 Risky Business: unpacking “pre-packs” Mark Phillips QC on recognition and Ogier’s Nicola Roberts and Leon Hurd Andrew Shaw on the difficulties that enforcement during transition and on some recent developments in Jersey pre-pack administrations pose to beyond insolvency practitioners ARTICLES SOUTH SQUARE NEWS EVENTS ROUND UP Just and Equitable Winding Up 16 Paul Heath QC 28 Insolvency Lawyers’ 58 David Alexander QC on when the South Square is delighted to Association Annual court will and won’t make an order announce Paul Heath QC joins Conference 2018 under Section 122(1)(g) as an Associate Member Junior G36 Event 2018 59 BHS, Carillion and the Current REGULARS Government Consultation on Insolvency and Corporate 50 From the Editor 4 Future Events Governance News in Brief 61 INSOL Channel Islands One Day 60 Hannah Thornley reviews what South Square Challenge 66 Seminar has happened post-BHS, what Diary Dates 68 III 18th Annual Conference, happened at Carillion and reviews CASE DIGESTS New York the government consultation paper Banking & Finance 30 Is the lawyer’s mouth shut Civil Procedure 32 forever? Commercial Litigation 35 Toby Brown explores whether legal 54 Company Law 38 professional privilege survives upon Corporate Insolvency 39 dissolution of a company Property & Trusts 43 GDPR ALERT: South Square Digest Disclaimer CONTINUE TO RECEIVE YOUR SOUTH SQUARE DIGEST The content of the Digest is provided to you for The General Data Protection Regulation came into force information purposes only, and not for the purpose in May this year. We are taking this opportunity to let you of providing legal advice. If you have a legal issue, you should consult a suitably-qualified lawyer. The know that you will continue to receive the Digest from us, content of the Digest represents the views of the and we will hold your details on our database for this purpose as you are a authors, and may not represent the views of other Members of Chambers. Members of Chambers valued contact of South Square. practice as individuals and are not in partnership However, if at any time you decide you don’t wish to receive it, or that you with one another. don’t want us to hold your contact details, please let us know and will we remove you from our database and mailing list. If you would like to know more about how we protect the privacy of our clients and other individuals whose personal data we collect, please visit our website to see our Privacy Policy. Designed and produced by Creative Interpartners, London SOUTH SQUARE DIGEST June 2018 www.southsquare.com From the Editors Welcome to the June edition of the South Square Digest Alongside the Royal Wedding, this season sees the commencement of another great partnership, as we begin our joint editorship of the Digest. We hope that, like the royal marriage, our friends and family will support and uphold it. Three things stand out from the news agenda since the Digest last went to print in early March: Novichok, North Korea and “No Customs Union”. First, the attempted murder of a Russian double- agent and his daughter with Soviet-designed nerve agent after a quiet Sunday lunch at Zizzi in Salisbury gripped the media for much of March/ April. Le Carré-esque spy expulsions on a level not seen since the Cold War ensued; followed by targeted US sanctions against a core of Russian ‘oligarchs’, leading to steep falls in the rouble and reported losses to one individual alone – Oleg Deripaska – of up to $10 billion. And finally, a no show by Roman Abramovich at the FA Cup Marcus Haywood & William Willson Final. But after government promises of tougher measures, it remains to be seen whether the booming Russian IPO market in the Square Mile exports to those three countries are the and Belgravia/Mayfair property prices will equivalent to approximately 6% of its annual really suffer. exports to the Netherlands alone. It’s going Second, the meeting of North Korean leader Kim to be a big job. Jong-un and South Korean president Moon Jae- Editing the Digest is a smaller, but nonetheless in marked a glimmer of hope in a regional war big job, and for our first edition we are assisted nearing its 70th year which undoubtedly affects with some outstanding contributions from our us all. However, beneath the promises of a halt to friends and colleagues. We have Mark Phillips nuclear testing, can the world realistically expect QC on “Brexit: Where Are We Going?”, which the North to give up its nuclear arsenal? And considers the brave new world we will face will the US recent decision to tear up 2015’s Joint when the UK loses Member State status on Comprehensive Plan of Action on Iran’s alleged 31 December 2020. New recruits to our list of efforts to develop nuclear weapons scupper any offshore contributors, Ogier’s Nicola Roberts and deal before it’s even on the table? The recent Leon Hurd, provide an invaluable overview of scrapping of the US-North Korean summit in recent developments in Jersey in both insolvency Singapore feels like a classic case of one step and civil procedure. Toby Brown tackles the forwards and two steps backwards. complex question of whether legal professional Finally, in the ever-present Brexit saga, it looks privilege survives the dissolution of a company. like our departure from the Customs Union has David Alexander QC considers just and equitable been given a stay of execution until after 2021. winding up, and Andrew Shaw unpacks pre- Nearly two years on from the Brexit referendum, packs. Finally, Hannah Thornley, who has acted one asks oneself how much (if any) air time the as a specialist legal adviser to the Work and prospect of an Irish “hard border” was given in Pensions and Business Select Committees on the run up to the vote; and reminds oneself how the BHS and Carillion enquiries, reviews the much there is still to be done. As we go to press recent Government Consultation on Insolvency the Foreign Secretary is visiting Chile, Peru and and Corporate Governance arising out of those Argentina, feeding manatees and in search of two collapses. We also have the usual case digest trade deals. But perspective is everything: UK section, edited by our most recent tenant, Rose From the Editors 5 Lagram-Taylor, and the latest South but suggests that responses to date On a final, positive, note we are Square Challenge (following on the have been cautious, largely technical, delighted to announce, at the time of heels of a bumper number of entries in and characterised by seemingly endless going to press, that Michael Crystal our March edition). consultation. QC has been awarded with the Global Restructuring Review Lifetime On 16 May 2018, the Work and Pensions Carillion could happen again – and Achievement award, which will be and Business, Energy and Industrial soon. However, it remains to be seen presented to him on 26 June. Strategies Committees published what, if any, reforms will come about their final report of their inquiry as consequence of the report and the Our thanks to everybody who has into Carillion’s spectacular collapse. company’s collapse. Indeed, the report contributed to this edition of the Digest. It presents Carillion’s rise and fall itself has received far from universal It is only right to emphasise, however, as a story of “recklessness, hubris and support. What is plain is that effective that the views expressed by individual greed” and Carillion’s business model corporate accountability will remain a contributors are theirs and theirs alone. as “a relentless dash for cash” driven central issue where there is pressure It also goes without saying that if you by acquisitions, rising debt and for both reform and development in have any feedback to give us in relation exploitation of suppliers. It concludes the law. to the Digest – positive or negative – that the government has “lacked the Having started with wedding prayers, we would be delighted to hear from you. decisiveness or bravery” to address the we finish with a funeral eulogy – failures in corporate regulation which Many thanks, and happy reading. and thank our recently departed allowed Carillion to become a “giant If you find yourself reading someone predecessor, Mark Arnold QC, for his and unsustainable corporate time bomb” else’s copy and wish to be added to the hard work, wisdom and expansion of – and calls upon the government to circulation list, please send an email our readership during his tenure as carry out an “ambitious and wide- to [email protected] and editor from November 2016 to March ranging set of reforms” to “reset our we will do our best to make sure that 2018. Mark has now gone on to better systems of corporate accountability”. you get the next edition and all future things (assuming his new role as joint It further criticises the government editions thereafter.