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Modified universalism endorsed in Tambrook

In the leading judgement in the Court of Appeal in HSBC Bank plc v Tambrook Jersey Limited [2013] EWCA Civ 576, Davis LJ approved Lord Hoffman’s reference in re HIH Casualty & General Insurance Limited [2008] UKHL 21 to “the principle of (modified) universalism, which has been the golden thread running through English cross-border insolvency law since the 18th century.”

Davis LJ made reference to the leading case, Rubin v Eurofinance [2012] UKSC 46, which commentators have identified as stepping away from the modified universalism principle (with the exception of the dissenting view of Lord Clarke).

I wonder whether Mann J at first instance in Tambrook was encouraging a relevant appeal on this point.  The facts of Tambrook were simply that a creditor of a Jersey registered company, with the company’s support, had sought a letter of request from the Royal Court in Jersey seeking the appointment of an administrator under English law, that being in creditors’ best interests.  Mann J had found that the High Court did not have jurisdiction, although such a practice had become reasonably common, albeit without documented judicial reasoning. 

The Court of Appeal found that the established Jersey and English practices were sound and took the opportunity to observe that “the provisions of Section 426 as enacted clearly are designed to accord with what Lord Hoffman has described as the “principle of modified universalism””.

Certainly the Court of Appeal’s decision is to be regarded as helpful to restructuring and cross-border insolvency, for which it is to be welcomed.



Date: 23rd May, 2013
Author: Chris Laughton


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