Many thanks to everyone who attended our recent webinar, “Business continuity on and after insolvency” by Fergus McCombie & Carol Cheng. We hope you found the talk useful and informative.
This webinar focused on business continuity in the insolvent context, particularly covering Phoenix companies and related risks for directors. Carol Cheng presented the first section, explaining what Phoenix trading involves. She outlined three key rules governing Phoenix companies: restrictions on using the insolvent company’s name for 5 years, requirements for proper independent valuation of assets sold to connected parties, and provisions for setting aside preference transactions and transactions at an undervalue. Carol also discussed the relationship between Phoenix trading and pre-packs, highlighting differences in process and structure.
Fergus McCombie then covered additional risks for directors, including the impact of TUPE regulations in insolvency contexts, with important distinctions between liquidation and administration scenarios. He explained how TUPE disapplies in liquidation proceedings but applies in administration and referenced recent case law on this topic. Fergus also discussed restrictive covenants in business sale contexts, distinguishing between employment and shareholder agreement covenants, and highlighted the importance of fiduciary duties continuing for former directors.
If you would like to review the webinar again, you can find the slides here (please email Chelsey Stuart if you would like to reuse the slides for your own purposes).
Fergus McCombie specialises in employment law and commercial litigation, with additional expertise in cyber, technology and data cases.
His practice spans the full range of employment matters, from statutory tribunal claims for dismissal, detriment or discrimination, through to High Court business protection work and intra-company disputes. It encompasses confidentiality and restrictive covenant infringement, partnership and LLP breakdown, collective rights and professional regulation.
He has acted for and against a variety of public bodies in respect of their quasi-business activities in regulated sectors. He has particular experience of the education and care home sectors, including funding provision and contractual debt recovery from private individuals, trusts and estates. He has advised police forces on collaboration agreements, including transnational agreements post-Brexit.
Fergus also has substantial experience in litigation and advisory work on business-to-business disputes, including economic torts, fraud and misuse of intellectual property. His expertise includes cryptoasset regulation by the Financial Conduct Authority, crypto fraud and tracing claims, and GDPR aspects of blockchain and smart contract applications.
Carol is happy to undertake work in all areas of commercial law including contractual disputes, corporate as well as personal insolvency, director’s duties, company law, partnership, agency, unjust enrichment and contentious trust matters. She has also undertaken mediations in commercial disputes as an advocate.
She regularly appears in claims involving breach of contract, misrepresentation and duress, represents creditors in bankruptcy and winding up petitions, and drafts pleadings (including in claims for breach of contract). She has also acted in various application hearings, including seeking an injunction; strike-out and summary judgment; Norwich Pharmacal and Bankers Trust relief; extensions of an administration; and permission to re-use a prohibited company name.
She has assisted Oba Nsugbe KC as junior counsel on MSC v Interglobal, acting for the consignees against one of the largest global container shipping companies in a Commercial Court dispute relating to the carriage of containers and involving urgent applications for interim anti-suit and anti-anti-suit injunctions.
