Blake Morgan Brief Banking Bites - March 2018
Welcome to the first offering of BBB 2018
This edition covers an introduction to the new insolvency regime for the further education sector, an update on the fate of LIBOR and the differences between fixed and floating charges.
We consider how dual representations work in practice for a legal professional (in the context of a baking and finance transaction) and how an individual creates a bill of sale as security of his/her personal chattels.
We conclude with a look at how estate agents can avoid liability for inaccuracies in their brochures with an appropriate disclaimer which highlights the obligation of property developers and purchasers to confirm the accuracy of the information by conducting their own enquiries.
The New Insolvency Regime for the Further Education Sector
As you may already be aware, the Technical and Further Education Act 2017 introduced a new statutory insolvency regime for further education and sixth form colleges with the intention that this would be implemented by the 2018/2019 academic year.
To outline the proposals for the technical detail of the regime and proposals for how colleges at risk of insolvency will be dealt with in practice, a consultation was launched by the Department for Education and this recently closed on 12 February 2018. The consultation sets out in further detail the proposals for the application of the insolvency procedures under the Insolvency Act 1986 to insolvent colleges, the introduction of a special administration regime, the requirements for insolvent colleges to make filings at Companies House and the modification of the Company Directors Disqualification Act 1986 to apply to college governors.
We have prepared a more in depth article setting out the key points of this consultation. Click here to access the full article.
An Overview to Dual Instruction
The Solicitors Regulatory Authority or SRA sets out the rules of conduct for solicitors and who they are allowed to act for and who they cannot. We take a look at dual instructions in the context of a banking and finance.
Bills of sale
A bill of sale is used as a form of security over personal chattels as it creates a conditional transfer of those chattels as security for debt. The effect of a bill of sale is that it transfers title to the lender for the period that the underlying debt is outstanding, not how long the bill of sale exists.
The transition away from LIBOR will take time, but will be less risky and less expensive if it is planned and orderly rather than unexpected and rushed."
Charges over goods can be either fixed or floating. It is the substance of the charge, rather than how it is labelled, that will determine in which camp it sits. As there are no clear statutory definitions, a number of factors will be considered when deciding whether the substance of a charge is fixed or floating. Classification of charges has great importance to lenders as during insolvency proceedings it will affect their entitlement to receive repayments towards their loan when assets are realised.
Brochure Disclaimer prevents Negligent Misstatement Claim
The Supreme Court has overturned a High Court decision that allowed a property developer to claim €350,000 in damages for negligent misstatement after he relied on incorrect information from Jones Lang LaSalle, an estate agent.