We came across an interesting argument concerning the right to sue after securitisation of assets in a recent reported case we ran for an asset finance company, Haydock Finance Limited v Starcruiser Bussing Limited [2021] EWHC 622 (Comm).
The case involved commercial vehicles and acting for the funder we brought a claim against the hirer for return of the vehicles and the guarantor for a substantial sum. There appeared to be no merit whatsoever in the Defence as served, but by the time of the hearing the Defendants turned up with a so-called “Securitisation Analysis Report” prepared by an academic in California who describes himself as an “Expert Analysis on Auto Agreement Backed Securities Data.”
On 1 December 2020 Crown preference in relation to unpaid taxes reappeared on the insolvency landscape for the first time since the abolition of the doctrine in the Enterprise Act 2002.
Debts owed to HMRC are now to rank as secondary preferential debts, ranking after employees’ preferential claims but, importantly, before claims of floating charge holders.
In our spring 2020 Briefing just as the global pandemic was taking hold we analysed some high-level issues likely to affect contractual relationships on the one hand between invoice financiers and their clients, and on the other hand between invoice financiers and debtors.
One of the effects of the pandemic has been to slow down (some might say even further!) the litigation process in the UK courts, and despite one or two high-profile decisions relating primarily to business interruption insurance there have been few reported cases dealing with the effects of the pandemic relevant to invoice financiers.
In our last Briefing we explained certain temporary changes to the insolvency regime arising from the pandemic and set out the relevant dates of those provisions.
On 26 March 2021, the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2021 (SI 2021/375) extended various temporary provisions in the Corporate Insolvency and Governance Act 2020 (“CIGA 2020”) that had otherwise been due to expire in March and April 2021.
There are somewhat conflicting reports as to the current level of deliberate fraud in the invoice finance industry, but it is worth keeping a watch on some of the cases relating to director qualifications.
In this regard it is noteworthy that three directors were recently banned for a total of 29 years for an invoice finance fraud.
There has been a massive overhaul of the UK’s immigration rules as part of the UK’s exit from the EU and the end of free movement for EU citizens in the UK.
New Points Based System
From the start of 2021 EU and non-EU citizens are now treated the same in terms of immigration law (save for Irish citizens who can still freely enter, live and work in the UK). According to the Government website, “the new points based system aims to attract people who can contribute to the UK’s economy.”
The statutory moratorium on lease forfeiture for commercial leases is set to expire at the end of June 2021. If it is not extended then tenants who have taken advantage of this will be required to resume rental payments as well as to pay any rent that has accrued during the moratorium.
We have received enquiries from tenants and landlords over the last few weeks anxious to understand what they can do about rent arrears and enquiring whether now is a good time to negotiate a new lease.
Our general thoughts on this are set out below. Obviously much will depend on your individual circumstances so it is important you seek specific advice before making any decisions.
It is commonplace to negotiate severance terms before an employee leaves employment due to redundancy. Discussions usually agree the sums to be paid and formal settlement agreements are signed to create a clean break between the parties.
The EAT has recently looked at a case where the parties had different ideas about what had been agreed, as well as what could be enforced.
Section 44 of the Employment Rights Act 1996 protects employees from employer detriment in certain health and safety cases: if they are absent from work because they reasonably believe that attendance would put them in serious and imminent danger or take appropriate steps to protect themselves if they reasonably believe they are in serious and imminent danger.
The right currently only extends to employees, rather than the wider definition of workers.
The Court of Justice of the European Union (CJEU) has considered two cases involving workers on standby and whether the whole of the standby period should be considered working time. The Working Time Directive says that working time is any period where the employee is working, at the employer’s disposal and carrying out their duties. A rest period is any period which is not working time.
The CJEU has previously found that standby time can be working time if the employee must be physically at the workplace (or another place determined by the employer) and able to provide services immediately if required. Another case, Ville de Nivelle v Matzak, said time spent by firefighters on standby at home was working time because they were required to be at home by the employer and to respond within 8 minutes. This put significant constraint on what they could do in terms of social and personal interests during that time.
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