The Isle of Man Winding Up Proceedings for Kaupthing Singer & Freidlander (Isle of Man) Limited ( Kaupthing )

Transcription

1 The Isle of Man Winding Up Proceedings for Kaupthing Singer & Freidlander (Isle of Man) Limited ( Kaupthing ) LIQUIDATION BULLETIN No: 1 1. Background 1. On October 8, 2008, the directors of Kaupthing resolved that it is and will be unable to pay its debts. 1 This is a big statement and means that in the opinion of Kaupthing s directors with the information then available to them, creditors are unlikely to get all their money back. 2. On October 9, 2008, Kaupthing and the Financial Supervision Commission ( FSC ) made a joint Petition to the Court to wind up Kaupthing. 3. On October 9, 2008, Deemster 2 Corlett appointed Michael Simpson of PricewaterhouseCoopers to be Provisional Liquidator ( the Order ). The Petitioners also applied for Michael Simpson to be Official Receiver, but this part of the application was not granted in the Order (see below). 4. At 10 am on October 24, 2008, the Petition will be heard at the Courthouse, Douglas, Isle of Man. The public are entitled to attend the hearing. 2. The Current Position The picture changes daily, but this is my current understanding of what has happened. 2.1 Kaupthing has 7,000 depositors, who are owed 850 million million is with Kaupthing s Icelandic parent and an English fellow subsidiary ( KSF ). KSF is in administration in England. It had 516 million of Kaupthing s deposits. If this 516 million is recoverable it is likely to be a long drawn out process. Kaupthing demanded 300 million from its parent, who apparently replied as follows: due to diverse reasons relating inter alia to financial and economic difficulties in Iceland it is unable to commit to providing Kaupthing with the liquidity which Kaupthing requires. I think that is Icelandic for you re on your own boys (at least that is the gist of what the Vikings meant). 1 See paragraph 21 Joint Petition dated October 9, The Manx name for a High Court Judge.

2 Recovering money from Iceland will take time and it will depend on the liabilities of Kaupthing Bank Hf. The immediate outlook for Kaupthing s creditors looks grim. 2.3 There is a mystery about the whereabouts of transfers made in the last 3 days before Kaupthing ceased trading. This amounts to about 100 million. Kaupthing used KSF for a lot of services (e.g. KSF controls Kaupthing s website). KSF undertook Kaupthing s clearing. In turn, KSF had Royal Bank of Scotland as its clearer. In the last few days of business, Kaupthing was losing 30 to 40 million a day in deposits. These were apparently debited to Kaupthing s account with KSF and it is not entirely clear to me what happened next to those transfers. If you made a transfer during this period, it will take some time to establish who is entitled to this 100 million. I would write immediately to Kaupthing s Provisional Liquidator, KSF s administrator and Royal Bank of Scotland asking them exactly what happened to these transfers. I would in the same letter claim the amount of my transfer if they happen to be holding it. They won t immediately pay you, but it will make everyone more careful. 2.4 The Isle of Man s Treasury Minister, Alan Bell, has made a number of hopeful sounding pronouncements over the weekend, which have been light on facts. In the absence of 680 million being transferred to Kaupthing s Provisional Liquidator, the best hope is to press ahead with the winding up of Kaupthing. If nothing else, it keeps pressure on those that want to avoid an insolvent winding up of Kaupthing to do something dramatic by 10 am on October 24, 2008 when this matter goes back to Court. 3. How a Court winding up works 3.1 On a winding up order being made the liquidator takes custody of Kaupthing s assets. In broad outline, the Liquidator has to: collect in Kaupthings assets and realise them for cash; agree Kaupthings creditors and what each creditor is owed; distribute the surplus cash, after costs, amongst the creditors. 3.2 In doing this, the liquidator is subject to the control of the Court, but must have regard to the directions of creditors. The liquidator can establish the wishes of the creditors by calling meetings. At creditors meetings matters are decided by a majority in number (i.e. by head count) and value (i.e. by what you are owed). Creditors meetings are

3 cumbersome and so at the first meeting of creditors, a Committee of Inspection ( the Committee ) should be appointed. The Court will not go against the sensible wishes of the majority of the creditors, or the Committee (unless overruled by a creditors meeting). The make up of the Committee is vital. 3.3 The first meeting of creditors will take place within a month of the winding up order being made. It is important as the creditors can: choose another person to be the liquidator: and elect the Committee. The creditors meeting is a must for creditors. If you cannot attend, you can appoint a proxy. I will write about giving your proxy wisely in a later Bulletin. 3.4 Use the rights you have in the winding up effectively. These include: attending Court on October 24, 2008; speaking at Court on October 24, 2008; proving for your debt in the winding up; voting at the first Creditors meeting for whom the creditors want to be the liquidator appointing members of the Committee of Inspection (or be on it if that is your wish and you get elected). 4. What to do about the Hearing on October 24, 2008? 4.1 Creditors need to band together and act together. The Hearing on October 24 is an opportunity to meet each other. You urgently, need to find some leaders, so turning up to the Court is a good idea. 4.2 On October 24, 2008 do turn up. If you want to be heard you need to complete the form below and get it to Seth Caine (seth.caine@cains.com)or Jonathan Wild (JWild@quinnkneale.com) by 6 pm on October 23, They would like a hard copy sent to them at Athol Street, Douglas, Isle of Man. If you want to make a point to the Court, but do not want to speak yourself you will need to appoint a Manx lawyer. The Isle of Man Law Society s web site has a list of names (

4 If you want to put evidence in front of the Court you will need an Isle of Man lawyer to prepare an affidavit for you. Any affidavit is due by October 21, If all you want to do is make points on how the winding up proceeds and who should be appointed you probably do not need to put in an affidavit. The hearing on October 24, 2008 is your opportunity to be heard. The Court will give a fair hearing to what you say and take it into account in reaching a decision. The hearing is likely to be widely reported. 4.3 If you want to speak complete this form and send it to Seth Caine (seth.caine@cains.com)or Jonathan Wild (JWild@quinnkneale.com) by 6 pm on October 23, 2008:-

5 Serial No: CP2008/04 Form 12 (Rule 22) Notice of an Intention to Appear on Petition IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION IN THE MATTER OF THE COMPANIES ACT 1931 and IN THE MATTER of KAUPTHING SINGER & FRIEDLANDER (ISLE OF MAN) LIMITED and IN THE MATTER OF THE JOINT PETITION OF KAUPTHING SINGER & FRIEDLANDER (ISLE OF MAN) LIMITED and the FINANCIAL SUPERVISION COMMISSION dated 9 th October 2008 Take notice that [INSERT NAME OF CREDITOR ] of [INSERT CREDITOR S ADDRESS] a creditor for [ ] of the above named company intends to appear in the hearing of the petition advertised to be heard on the 24 day of October 2008 and to support/oppose such petition.. Signed Address: [INSERT CREDITOR S ADDRESS] To: Seth Fargher Caine & Jonathan Wild Athol Street Douglas Isle of Man

6 4.3 If you want to speak at Court, I think the following issues need to be raised: Unless someone can demonstrate an overwhelming reason why Kaupthing should not be wound up, you want it wound up so that the creditors have a clear role in the future of Kaupthing s assets Why are the FSC a joint petitioner? What do they add to the proceedings apart from costs? The FSC s costs will reduce the amount available to the creditors (albeit small in the context of the problem), but every bit counts. I think that creditors should start as you mean to go on and try and keep costs to a minimum. Here are four technical reasons why the FSC are unnecessary: The resolution passed by the directors on October 9 should make it certain the Court will make the winding up Order, so it is not necessary for a second person to apply for the winding up on other grounds John Cashin is a director of Kaupthing and the FSC it gives the FSC a conflict (a lot more about this in a later Bulletin) Section 164 (1) (a) Companies Act 1931 does not permit Kaupthing to make a joint petition with the FSC, so Kaupthing s petition does not comply with section 164 (1) Companies Act 1931 unless the FSC withdraw The FSC s can only apply for Kaupthing to be wound up if it is expedient in the public interest. They have not applied on this ground. In any event, they probably need leave to bring the petition. This is all in section 164 (1) (d) Companies Act The main point is the conflict and the extra costs Ask that Michael Simpson (who is a very nice and good guy in my opinion) only be appointed Provisional Liquidator and not be appointed Official Receiver. This will mean that he will have to post security/an insurance bond at his expense not the creditors expense to cover any defaults. He will not have to do this if he is Official Receiver. This is not a reflection on Mike or PricewaterhouseCoopers, who are amongst a very few that can do the job in the Isle of Man. It is just that this is so big, it is right that the creditors be properly protected by security for the liquidator s actions. 3 (d) If it appears to the Financial Supervision Commission from any information or document in its possession that it is expedient in the public interest that a company should be wound up, it may, unless the body is already being wound up by the court, present a petition for it to be so wound up if the court thinks it proper for it to be so wound up.

7 If this is opposed by the joint petitioners, it may be a good reason to pick another liquidator at the first creditors meeting Ask the Court to direct in relation to the Committee: Committee meetings can take place by telephone or video conference calls this makes it easy and less expensive for the Committee to meet, so making it able to be more effective; the Liquidator not to seek general sanction to use the powers listed in section 184 (1) Companies Act , other than to appoint an advocate most liquidators seek such general sanction at a Committee meeting held immediately after the first creditors meeting, if it is given the Committee finds that most of its power to oversee what the liquidator does has evaporated (in my view a Committee should never give a general sanction the Committee should approve all major steps by the liquidator before he takes them and after he has briefed the Committee in writing). 5. What next? 5.1 Unless there is substantial reason for an adjournment on October 24, 2008 the winding up order ought to be made Powers of liquidator (1) The liquidator in a winding up by the court shall have power with the sanction either of the court or of the committee of inspection- (a) to bring or defend any action or other legal proceeding in the name and on behalf of the company: (b) to carry on the business of the company, so far as may be necessary for the beneficial winding-up thereof: (c) to appoint an advocate or other law agent to assist him in the performance of his duties: (d) to pay any classes of creditors in full: (e) to make any compromise or arrangement with creditors or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable: (f) to compromise all calls and liabilities to calls, debts, and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and a contributory, or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or winding up of the company, on such terms as may be agreed, and take any security for the discharge of any such call, debt, liability or claim, and give a complete discharge in respect thereof.

8 Unless you object, Mike Simpson will be appointed Provisional Liquidator (but hopefully not Official Receiver). 5.2 Mike Simpson will then convene the First Creditors meeting. This is a vital step in the proceedings and as many creditors as possible should turn up. I will detail the next steps in a subsequent Bulletin. 6. About me My name is Jonathan Smalley. I am a solicitor practising in the Isle of Man. I am one of the founding partners at Stuart Smalley & Co LLC. We are conflicted and cannot act for individual creditors. I felt that creditors deserved more information than they get in a Court winding up. Hence I decided to write a series of Bulletins. The next Bulletin will have a lot more on the First Meeting of Creditors, proving your debts and using your proxies carefully. Good luck. Sunday, October 19, 2008