May 22, 2020

In the latest judgment in the long-running bankruptcy proceedings against businessman Moises Gertner,  Mr Justice Marcus Smith has set aside a bankruptcy order made last year by Chief ICC Judge Briggs.

The Court ruled that Judge Briggs had taken into account immaterial factors in the exercise of his discretion, and that the bankruptcy petition ought to be stayed so as to allow Mr Gertner’s creditors to vote on a proposed IVA.

The judgment may be of interest to:

  • insolvency practitioners, because it contains useful analysis on the Turner principle (ability to take points not argued at earlier hearings), the scope of the ‘good faith principle’ in IVAs, and the factors which a judge may take into account when considering whether to adjourn or stay a petition in favour of an IVA and when weighing opposing views of creditors; and
  • disputes practitioners more generally,  because the Judge commented – albeit on an obiter basis – that the Consumer Credit Act 1974 could apply to a settlement contract appended to a Tomlin order (with the result that a Tomlin order providing for payment by instalments could involve the provision of credit under the CCA and be a regulated agreement for those purposes).

James Knott has acted for Mr Gertner throughout these long running proceedings, appearing in the Bankruptcy Court, the High Court (twice) and the Court of Appeal.