Is there now an established test of fairness for the sanction of a Part 26A Restructuring Plan? In Re Virgin Active [2021] EWHC 1246 (Ch) at [219]-[221], the Court was quick to dismiss the idea despite remarks to the contrary included within the Explanatory Notes to the Corporate Insolvency and Governance Act 2020 (“CIGA 2020”). However, subsequent Part 26A cases have demonstrated that the Court will weigh in on the fairness of a Plan prior to sanction and is prepared to test Plan proponents in the interests of those being compromised.  The general approach and level of scrutiny applied to the question of fairness by the Court tends to differ from case to case, often depending upon the level of challenge posed by Plan creditors, and is not confined to a consideration of such matters only within the context of cross-class cram down under section 901G Companies Act 2006 (“CA 2006”). Particularly in light of recent case law, it is becoming increasingly difficult to argue that there is still no established test of fairness for Plans.  Some of the principles which have guided the Court’s analysis of fairness, and the exercise of its broader discretion over sanction, were recently (and conveniently) listed in Re Prezzo Investco Ltd [2023] EWHC 1679 (Ch) at [68].  Will this list simply continue to grow over time, as developed by practice, or will it eventually be distilled into a definitive test through Parliamentary intervention?

We have published a leaflet considering some of the key legal and practical considerations to take before gearing up for either a distressed or strategic M&A transaction in the retail and consumer goods sector. 

A new set of regulations known as the Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021 (SI 2021/427) (the “Regulations”) came into effect on 30 April 2021.  The Regulations contain numerous features which mean that pre-packaged administration sales (specifically to connected persons) will begin to face a greater level of independent scrutiny.