7 January 2021
R&I update - January 2021 – 2 of 4 Insights
In Arlington Infrastructure Ltd (In administration) and another v Woolrych and others  EWHC 3123 (Ch), the Court considered the meaning of a deed of priority entered into between the senior and junior secured creditors of Arlington Infrastructure Limited (AIL). The junior creditors (but not the senior creditor) also held debentures over AIL's subsidiary companies.
The deed of priority provided that the junior creditors wouldn't take any step to enforce any security interest (including over the subsidiaries) without the prior written consent of the senior creditors. Without seeking prior consent, the junior creditors purported to appoint administrators over the subsidiaries.
The senior creditors applied to challenge the validity of that appointment on the grounds that – without the necessary consent (which would not be granted) – the junior creditors' floating charge was not "enforceable" under Paragraph 16 of Schedule B1 Insolvency Act 1986.
This decision demonstrates the importance of a secured creditor reviewing all security documentation (as broadly defined above) and obtaining any consents required under the terms of any intercreditor arrangements before taking enforcement action. To discuss the decision in more detail, please reach out to a member of our Restructuring & Insolvency team.
by Nick Moser
by Nick Moser