Key Issues in Project Lietzenburger Strasse HoldCo SARL: Examining Corporate Restructuring Under UK Insolvency Laws

Citation: [2023] EWHC 2849 (Ch)
Judgment on

Introduction

In the case of Project Lietzenburger Strasse HoldCo SARL ([2023] EWHC 2849 (Ch)), Mr Justice Miles endeavoured to determine whether meetings should be convened for creditors to consider a restructuring plan under Part 26A of the Companies Act 2006. The judgment encompasses several fundamental issues which are pertinent to corporate insolvency law and restructuring proceedings in the UK.

Key Facts

The crux of the case involves the Plan Company, a Luxembourg-incorporated holding company within a group owning a substantial real estate development in Berlin. The key asset, a development site on Kudamm, faced significant financial challenges. After construction halts and trapped cash flow, with over €1 billion in secured debt maturing imminently, the company proposed a restructuring plan to avoid insolvency. The group structure, its secured debts, and their priority, as well as the purpose of the proposed Plan to renegotiate debt and resume construction, formed the fulcrum upon which the proceedings pivoted.

The judgment touches upon several legal principles pertaining to restructuring plans under Part 26A of the Companies Act 2006:

  1. Jurisdiction and COMI (Centre of Main Interests): A contentious issue was whether the Plan Company had moved its COMI to England, which carries implications for jurisdiction and the court’s discretion to sanction the Plan. This is in line with previous cases in which a company could be considered for UK restructuring if it has sufficient connection with the jurisdiction, including any shift in COMI.

  2. Condition A and B of Section 901A: Justice Miles assessed whether Conditions A and B were satisfied for proceeding with the Plan as per the Companies Act 2006. Condition A concerns the company’s financial difficulties impacting its going concern status, while Condition B involves the purpose of the arrangement in addressing financial challenges.

  3. Creditor Classes and Voting Rights: The court delved into the appropriate composition of creditor classes, emphasizing similar rankings as a basis for voting separately. Potential class fractures due to differing incentives or recoveries were scrutinized but not found sufficient to disrupt class composition.

  4. ‘Relevant Alternative’ Concept: The court considered the “relevant alternative” to the Plan, typically reflecting the circumstances should the company enter insolvency instead. Here, the evidence suggested that without the Plan, a formal insolvency proceeding was imminent.

  5. Notice and Timing for Convening Hearings: The court also highlighted the importance of providing adequate notice to creditors ahead of convening hearings, cautioning against the practice of short-notice applications. This discussion illuminates the balance between urgency and due process.

  6. Legal Precedents: Justice Miles referenced several prior cases to underscore legal principles, including Re Prezzo InvestCo Limited, Re Noble Group Limited, Re ColourOz Investment 2 LLC, and others. These cited cases reinforced points on jurisdictional matters, creditor arrangements, and the significance of consent fees, among others.

Outcomes

Following Justice Miles’ comprehensive deliberation on these key issues, it was concluded that there exist no insurmountable jurisdictional roadblocks or other factors precluding the convening of creditor meetings. The Plan Company’s proposed class meetings were deemed appropriately instituted, and the Plan was allowed to advance towards a sanction hearing with a timetable set for late January or early February 2024.

Conclusion

The [2023] EWHC 2849 (Ch) case underscores the necessity of a nuanced understanding of restructuring laws within corporate insolvency in the UK. It reaffirms the court’s rigour in examining not just the statutory requirements but also the practical implications of corporate actions on creditor rights and obligations. Consequently, legal professionals must remain vigilant in observing due process during restructuring, ensuring adequate notice for hearings, and avoiding any presumption of court leniency in face of urgency claims. The case remains an instructive exemplar for procedures under Part 26A of the Companies Act 2006, particularly in cross-border scenarios with concerns surrounding COMI and sufficient connection to the UK jurisdiction.

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