On 2 December 2021, the Court of Appeal handed down its judgment in Windhorst v Levy (2021) EWCA Civ 1802, a case in which ZIMMERs Solicitors represented the Respondent successfully. The Appellant challenged the registration of a German judgment in favour of the Respondent in England on the basis that he had subsequently entered into an insolvency plan in Germany.
The Court of Appeal held that the registration should stand. It also refused the Appellant’s application for an unconditional stay of execution but instead ordered a conditional stay on the payment of a security of USD 3.44 million, which mirrored an court order in place in Germany. This is the first reported case on the interplay between the Brussels I Regulation and the Insolvency Regulation. And the judges examined the extent the courts in which country the registration is sought are allowed to question the enforceability of a judgment in the country of origin.
This case is a very good example how ZIMMERs Solicitors and its dually qualified lawyers successfully represent their clients’ interests in cross border matters in English courts, even in the highest court within the Senior Courts of England and Wales.
ZIMMERs is on TV – about the issue of “Insolvency tourism”
ZIMMERs Solicitors is regularly engaged in problems concerning “insolvency tourism”. ZIMMERs mainly represents creditors who - for various reasons - feel that insolvency procedures in the UK are
inappropriate. In this context Mr Zimmer, Senior Partner of ZIMMERs Solicitors, was interviewed by a major German public broadcaster, ZDF, in connection with insolvency proceedings of an investor
adviser who - according to the German courts - had defrauded a great number of private investors of an eight figure Euro sum. Please open this link to watch the interview.
Discharge of residual debt in 12 months – Preconditions
Even though the discharge of residual debt comes into force after 12 months, relatively great sacrifices in one’s personal life also have to be taken into account. These include that the debtor must prove that he has really moved his private and professional life (family residence, development of a professional occupation, building a social life) to England.
Principles of the European Union Council Regulation on Insolvency Proceedings
Insolvency law with cross-border cases within the European Union is significantly influenced by Regulation 1346/200 of the European Union Council Regulation on Insolvency Proceedings. The regulation was first and foremost created in order to simplify and facilitate inner-European insolvency proceedings.
According to Art. 18 Par. 1 of the EU Regulation, the insolvency administrator appointed by a court of a member state of the European Union therefore can also use the rights he enjoys in one member state in all the other member states.
Jurisdiction for commencement of insolvency proceedings is decided under Art. 3 Par. 1 of the Regulation, which states that the courts of a member state where the insolvent debtor has his main business interests have jurisdiction. With companies and bodies corporate it is assumed until proven otherwise that this is where the registered office is. According to Art. 4 Par. 1 of the Regulation, the law of the state commencing proceedings is normally applicable.
So a German insolvency administrator has all the rights under Section 80 Par. 1 of the German Insolvency Law in other member states, too. He must, however, pay attention to the right of the individual member state to exercise his rights under Art. 18 Par. 3 of the EU Insolvency Regulations.