Belmont Park Pty Ltd v BNY Corporate Trustees Ltd

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Belmont Park Investments PTY Ltd v BNY Corporate Trustee Services Ltd & Anor
Middlesex.guildhall.london.arp.jpg
Court Supreme Court of the United Kingdom
Full case name Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Lehman Brothers Special Financing Inc
Argued 1–3 March 2011
Decided 27 July 2011
Neutral Citation [2011] UKSC 38
Reported at [2012] 1 All ER 505, [2012] 1 AC 383
Case history
Prior action(s) Perpetual Trustee Company Ltd & Anor v BNY Corporate Trustee Services Ltd & Ors [2009] EWCA Civ 1160 (6 November 2009), dismissing appeals from Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd & Anor [2009] EWHC 1912 (Ch) (28 July 2009) and Butters & Ors v BBC Worldwide Ltd & Ors [2009] EWHC 1954 (Ch) (20 August 2009)
Holding
LBSF's appeal dismissed; the validity of the contractual provisions was upheld
Case opinions
Majority Lord Collins (Lord Walker concurring)
Lord Mance
Area of Law
UK insolvency law

Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Lehman Brothers Special Financing Inc [1] is a UK insolvency law case, concerning the general principle that parties cannot contract out of the insolvency legislation. The principle has two key aspects, of which the Supreme Court of the United Kingdom ruled that only the first was relevant to its ruling:

  1. The anti-deprivation rule, which is aimed at attempts to withdraw an asset on bankruptcy or liquidation or administration, thereby reducing the value of the insolvent estate to the detriment of creditors.
  2. The pari passu rule, which reflects the principle that statutory provisions for pro rata distribution may not be excluded by a contract which gives one creditor more than its proper share.

Facts[edit]

Lehman Brothers, prior to its 2008 filing for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code, created a package of 19 special purpose vehicles (including Lehman Brothers Special Financing Inc) known as the "Dante Programme." They issued 180 series of notes with an aggregate principal amount of $12.5 billion.

The complex documentation relating to the series of transactions included provisions relating to:

  • credit default swap agreements,
  • consequential reduction of the principal amount upon certain specified "Credit Events"
  • claims of LBSF and the Noteholders were limited to the collateral amount, and there was no right of recourse against the issuer
  • the respective priorities of LBSF and the Noteholders in the "Event of Default" or otherwise (ie, LBSF had priority in the first case, and the Noteholders would have it in the second, and the clause was referred to as "the Flip")

A group of 29 Australian investors, headed by Belmont, instructed BNY Corporate Trustee Services Ltd, the trustee for several of the notes in question, to have the issuer of the notes cancel the swap agreement. The Belmont group, together with Perpetual Trustee Co Ltd (another noteholder) launched claims against BNY to realise upon the collateral over any priority held by LBSF under the agreement. LBSF was joined as a party to the action.

The courts below[edit]

In July 2009, the Chancery Division of the High Court of Justice found that:[2]

  • the contractual provisions were effective as a matter of English law and, in particular, did not offend the anti-deprivation rule as stated in British Eagle International Airlines Ltd v Compagnie Nationale Air France;
  • alternatively, if the provisions were capable of offending the anti-deprivation rule, the rule was not engaged because an alternative Event of Default (the Chapter 11 filing by LBHI) had occurred prior to the Chapter 11 filing by LBSF, and consequently the Chapter 11 filing did not deprive LBSF of any property

The ruling was upheld by the Court of Appeal of England and Wales in August 2009. In discussing the nature of the anti-deprivation rule, Neuberger MR (as he then was) observed:[3]

  1. the rule is based on public policy, but only to the extent that one cannot contract out of the insolvency legislation
  2. where the rule is invoked, it is essential to begin from the elementary proposition that insolvency law is statutory and primacy must be given to the relevant statutory text
  3. when considering whether the rule applies to a particular provision, there is, at least in principle, no difference between cases where the provision is expressed to apply on insolvency or liquidation and those where it is not so expressed
  4. the courts should not extend the rule beyond its present limits, especially following the passage of the Insolvency Act 1986, save where logic or practicality otherwise require
  5. judicial decisions in the insolvency field should ensure that the law is clear and consistent

The Supreme Court granted permission to appeal.

At the Supreme Court[edit]

The Court of Appeal's decision was upheld by the Supreme Court. In so doing, Lord Collins in his speech discussed how the anti-deprivation and pari passu rules were designed to address different mischiefs,[4] and how the first rule does possess limits in its application:

  1. in borderline cases, a commercially sensible transaction entered into in good faith should not be held to infringe the rule[5]
  2. it does not apply if the deprivation takes place for reasons other than bankruptcy[6]
  3. there is a distinction between a "flawed asset" (where an interest is always subject to the condition of the counterparty not going into insolvency) and an interest which is granted outright and then forfeited at the onset of bankruptcy, but it remains unclear where the line between the two is or ought to be drawn, and there is no case where the rule can be said to be generally applicable to either instance[7]
  4. the rule only applies where the bankrupt's own property is in issue[8]

While all justices agreed that the appeal should be dismissed, Lord Mance did not rely on the "flawed asset" theory, instead finding that, prior to an event of default under the swap, neither the Noteholders nor LBSF had priority over the collateral proceeds. Once the event occurred, the priority would be determined under the swap's terms, and the Flip did not contravene the rule.[9]

In discussing applicable principles, Lord Mance observed that the pari passu rule addresses what happens in bankruptcy, and the anti-deprivation rule addresses what happens on bankruptcy. While conceptually distinct, they are quite closely allied.[10] He also provided a three-part test in order to determine what might constitute deprivation:

Impact[edit]

The Court of Appeal believed that the current statutory régime embodied in the 1986 Act provided a comprehensive scheme, and the purpose of the common law could only be to reinforce and back up the statutory rules. The Supreme Court disagreed, holding that the anti-deprivation rule still had a valid place in English jurisprudence. As Lord Collins noted:

The Court also expressed its preference for objective analysis of what is the actual content of commercial arrangements that have been entered into:

The point that commercially sensible transactions entered into in good faith should not be lightly set aside is consistent with recent decisions of the Supreme Court and its predecessor the House of Lords concerning taking a purposive interpretation of contracts in order to uphold the parties’ intentions as far as possible. Other notable cases in that regard include Chartbrook Ltd v Persimmon Homes Ltd and Re Sigma Finance Corporation.[11]

Belmont Park was closely watched by The Football League, as it had great implications concerning the validity of its football creditors rule which requires that debts to other clubs or players are prioritised and must be paid in full before the club is eligible to compete again in the League. The Football Association Premier League Limited intervened in the Belmont Park appeal for that reason, and had postponed its own litigation in that regard until the disposition of that case.

In 2012, the Chancery Division ruled that the football creditor rule was valid, and did not violate either the anti-deprivation rule or the pari passu rule. In his judgment, Richards J, relying on Belmont Park, declared:[12][13]

  • the anti-deprivation rule applies from the commencement of administration
  • the pari passu principle comes into play only if the purpose of the insolvency procedure is to effect a distribution
  • if a transaction has the effect of depriving a company of an asset in order to distribute it among some only of the creditors otherwise eligible to participate in a distribution, it offends both principles
  • if the deprivation occurs on the company going into administration, only the anti-deprivation principle will be engaged

Further reading[edit]

See also[edit]

References[edit]

  1. ^ Belmont Park Investments PTY Ltd v BNY Corporate Trustee Services Ltd & Anor [2011] UKSC 38, [2012] 1 All ER 505, [2012] 1 AC 383 (27 July 2011)
  2. ^ Perpetual Trustee (EWHC 2009), par. 45–49
  3. ^ Perpetual Trustee (EWCA 2009), par. 53–58
  4. ^ Belmont Park (UKSC 2011), par. 1–15
  5. ^ Belmont Park (UKSC 2011), par. 74–79
  6. ^ Belmont Park (UKSC 2011), par. 80–83
  7. ^ Belmont Park (UKSC 2011), par. 84–91
  8. ^ Belmont Park (UKSC 2011), par. 92–98
  9. ^ Belmont Park (UKSC 2011), par. 168
  10. ^ Belmont Park (UKSC 2011), par. 149
  11. ^ Oliver Gayner (24 August 2011). "Case Comment: Belmont Park Investments v BNY Corporate Trustee and Lehman Brothers Special Financing [2011] UKSC 38". UKSC Blog. 
  12. ^ HM Revenue and Customs v The Football League Ltd & Anor [2012] EWHC 1372 (Ch) at para. 73–104 (25 May 2012)
  13. ^ "Pari passu rule on insolvency clarified and limited". Linklaters. 29 May 2012.