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Year of Call: 1984E: jamesbarker@enterprisechambers.comT: 020 7405 0471Clerk: Michael IrelandClerk: Luke Clark

PRACTICE AREASInsolvency & RestructuringCompanyCommercial

Home Our People James Barker

James Barker

Banking and Finance

Insolvency & Restructuring

All aspects of corporate insolvency including directors’ misfeasance; fraudulent andwrongful trading; preferences and transactions at an undervalue; the payment ofunlawful dividends; and the rights and duties of liquidators, administrators, andsupervisors of CVAs. Personal insolvency, including clawback claims and the rightsand duties of trustees in bankruptcy and supervisors of IVAs.

Recent cases include:

Acting for the liquidators of a number of companies, who had been involved inMTIC (missing trader intra community) VAT fraud involving carbon credits, in anongoing “dishonest assistance” claim against a bank.

Advising the liquidators of a failed construction company left with large CIS taxliabilities as a consequence of large sums of cash having been paid away to thirdparties.

Acting for the trustees in bankruptcy of an Irish property developer inproceedings concerning the rights to a pension fund worth in excess of £8million. The case raises jurisdictional / cross-border issues, and a question as towhether the UK legislation concerning vesting of pensions in a trustee inbankruptcy is compatible with EU law.

Represented a liquidator in a claim (which succeeded at trial) for declarationsthat company money had been misappropriated and paid away pursuant to atransaction at an undervalue, and that the company had a proprietary interest ina property purchased using money that had been improperly diverted away fromit: Macetone Ltd v Ahmed [2018] 11 WLUK 295.

PROFILE

James has been in practice at Enterprise Chambers since 1987. He specialises inthe areas of insolvency, company, partnership, commercial, banking andproperty.

PRACTICE AREAS

Settling proceedings to set aside a CVA on the ground that its terms unfairlyprejudiced the interests of one of the company’s creditors.

Acting for a liquidator in claims (which succeeded at trial but are, in part, thesubject of a pending appeal to the Court of Appeal) to recover sums paid to ashareholder / director by way of a share buy-back arrangement. The claims werebrought under section 691 of the Companies Act 2006 (shares bought back by acompany must be paid for in cash) and section 423 of the Insolvency Act 1986(transaction defrauding creditors): Dickinson v NAL Realisations Ltd [2018] 1 BCLC623.

Company

Corporate governance issues including the calling and conduct of meetings, anddirectors’ duties. Share sales and financial assistance. Issues arising out of the grantof security by companies.

Recent cases include:

Acting for a shareholder / director in a successful derivative action brought,pursuant to section 260 of the Companies Act 2006, on behalf of a companyagainst a co-director for breach of duty in misapplying company money. Afreezing injunction had been obtained when proceedings were commenced.

Acting for the Petitioners in ‘unfair prejudice’ proceedings brought on the basisthat a ‘subject to contract’ agreement that had never become contractuallybinding nevertheless created legitimate expectations on which the Petitionerscould rely.

Advising as to the meaning and effect of share pre-emption and transferprovisions contained in Articles of Association and apparently inconsistentprovisions contained in a shareholders agreement.

Commercial

Representing corporate and individual clients in all manner of commercial disputesincluding, in particular, claims arising out of share and asset sale agreements.

Recent cases include:

Acting for the claimant in a dispute arising out of a share sale agreementcontaining an indemnity from the seller that was intended to protect the claimantagainst losses arising if a third party was successful in an ongoing claim torecovery of money previously paid by it to the subject company. The sellerargued that the claimant could not enforce the indemnity because it had notcomplied with its obligations.

Advising in relation to a contractual dispute concerning commission fees claimedto be due to for the introduction of funders to a company looking to raise capital.A settlement agreement had been entered into which was said to preclude theintroducers from claiming commission.

Representing the claimants in a long running partnership dispute involving issuesas to where commercial and residential properties are beneficially owned by thepartnership or by the individuals who are registered as proprietors at the LandRegistry.

Advising in a dispute as to whether completion accounts produced following ashare sale agreement are in compliance with the terms of that agreement, andwhat the consequences are in the event that the accounts are found to be non-compliant.

Banking and Finance

Acting for, and against, banks in claims concerning mortgages and guarantees, andmore general disputes relating to commercial lending and associated negligenceclaims.

Recent cases include:

Advising on a claim based on the duty of care owed by a bank – or otherfinancial institution – to exercise reasonable skill and care in its dealings withmoney belonging to a client, and to refrain from carrying out instructions comingfrom a corporate client in circumstances where there is reason to think that theinstructions could be part of a scheme to defraud that client.

Acting for prospective claimant (a settlement was achieved prior to issue ofproceedings) in a pension mis-selling case. The client was induced to realise thevalue of two separate pension schemes and transfer the proceeds into a newlyformed SIPP. The proceeds were then placed into risky investments whichsubsequently failed.

Advising a leading alternative finance provider on issues arising out of loansfunded by users of its on-line platform.

Advising third party who had given a personal guarantee and supporting securityto a bank for the debts of a company owned and controlled by a relative, as tothe prospects of successfully bringing proceedings to set aside the guaranteeand security.

Representing a bank in proceedings brought by claimants who had givenpersonal guarantees and supporting charges. The claimants contended that thebank was not entitled to enforce its rights. The claims were dismissed on thebank’s application for summary judgment, and the claimants appeal to the Courtof Appeal was unsuccessful.

Hellard v Macetone [2018]11 WLUK 608

Claims by liquidator to recover funds taken from the company by a misfeasantdirector and to protect the company’s beneficial interest in a property acquired withsuch funds.

Barrett v Barrett [2018]10 WLUK 295

Derivative claim brought pursuant to section of the Companies Act 2006 against adirector for breaches of fiduciary duty in misappropriating company funds.

Dickinson v NAL Realisations (Staffordshire) Ltd [2018]B.C.C. 506

Claims by liquidator for the recovery of money and assets received by a director /shareholder from the company. Issues as to (i) the operation of the Re Duomaticprinciple; (ii) whether a share buy-back arrangement infringed section 691 of the

SIGNIFICANT CASES

Companies Act 2006, and was therefore void, on the ground that the shares werenot paid for by the company on purchase; and (iii) whether a share buy-backconstitutes a transaction at an undervalue for the purposes of section 423 of theInsolvency Act 1986.

Re DPA Holding SA [2017]BPIR 687

Application to set aside orders for examination of individuals made under section 426of the Insolvency Act 1986 in aid of insolvency proceedings taking place in the BritishVirgin Islands. Issues as to duty of disclosure on without notice applications, andconflict of interest.

Ahmad v Bank of Scotland [2016]6 WLUK 597

Appeal to Court of Appeal from order striking out claims against a bank for breach ofcontract and other alleged improper conduct. Issues as to contractual interpretationand the scope of cause of action estoppel and res judicata.

Mawer v Bland [2015]BPIR 66

Appeal from order continuing a suspension of discharge from bankruptcy pursuant tothe provisions of section 279(3) of the Insolvency Act 1986.

Re TST Group Ltd [2012]EWHC 4059 (Ch)

Contested winding-up petition. Issue as to the construction of a loan agreement, andas to the point at which a company becomes unable to pay its debts within the

meaning of section 123 of the Insolvency Act 1986. Consideration of the Court ofAppeal decision in BNY Corporate Trustee Services v Eurosail UK.

Re Bickland Ltd [2012]BCC 884

Application for costs of an administration application to the court in circumstanceswhere no administration order was made because administrators were appointed bya floating chargeholder pursuant to paragraph 14 of Schedule B1 to the Insolvency Act1986. Consideration as to the order of priorities of expenses in an administration.

Sahota v RR Leisureways (UK) Ltd [2010]EWHC 3114 (Ch)

Interpretation and effect of rent review provisions in commercial lease. Considerationof principles governing rectification of contract terms and the enforceability of theright to rectify against an assignee.

Bank of Scotland Plc v Makris [2009]5 WLUK 364

Claim under personal guarantee of company debt due to the bank. Consideration ofdefences based on material variation of the surety contract, and undue influence.

Close Invoice Finance Ltd v Korpal [2009]9 WLUK 343

Contractual interpretation. Ambiguities and inconsistencies in provisions of debtfactoring agreement.

Corporate Development Partners LLC v E-Relationship Marketing Ltd [2009]BCC 295

Issue as to whether an agreement entitling the claimant to fees for facilitating theacquisition of shares in a company was unenforceable on the ground that itconstituted financial assistance for the acquisition of the company’s own shares andtherefore infringed section 151 of the Companies Act 1985.

Daleri Ltd v Woolworths Plc [2008]5 WLUK 224

Issue as to whether the Defendant had taken a valid assignment of the right to bepaid a debt due from the Claimant which was now in liquidation, such that theDefendant could set-off the debt against its own indebtedness to the Claimantpursuant to rule 4.90 of the Insolvency Rules 1986.

Phillips v Symes [2008]BPIR 212

Dispute as to whether assets were owned by a partnership or a company inliquidation. Exercise of court’s management powers to stay proceedings

CBR (Wakefield) Ltd v Puccino's Ltd [2006]EWHC 2993

Application to set aside order striking out claims for failure to company with courtorders. Consideration of principles governing relief from sanction.

Belfield Furnishings Ltd v Isaacs & Harrison [2006]2 BCLC 705

Shareholder dispute. Application to strike out unfair prejudice petition as an abuse ofprocess in the face of an offer to purchase petitioner’s shares made pursuant toprovisions in the company’s articles of association.

Re Chicago Holdings Ltd [2005]12 WLUK 127

Application for specific disclosure of documents claimed to be privileged.Consideration of the iniquity / fraud exception to privilege.

Fliptex Ltd v Hogg [2004]BCC 870

Challenge to the validity of appointment of administrators of a company pursuant toparagraph 14 of Schedule B1 to the Insolvency Act 1986

Marchday Group Plc v British Telecommunications Plc [2003]11 WLUK 252

Breach of repairing covenants in commercial lease. Damages claim for loss of rent.Consideration of the appropriate measure of damages.

UCB Corporate Services Ltd v Williams [2003]1 P&CR 12

Acted for the Respondent in the Court of Appeal. Fraudulent misrepresentation and

undue influence in relation to the grant of a mortgage. The relevance of causation ina case concerning equitable fraud.

Re DWS [2001]Ch 568

Administration of estates. Son murdered his parents and was accordingly disqualifiedfrom benefiting on their intestacy. Dispute between the son’s issue and the murderedparents’ siblings as to who should take.

Locabail (UK) Ltd v Bayfield Properties Ltd [2000]QB 451

A leading authority on the issue of apparent bias Allegations that the trial judge wasbiased and had a conflict of interest.

CAREER AND ASSOCIATIONS

LLB, University of Birmingham

Called to the Bar in 1984

Member of the Chancery Bar Association

Member of the Property Bar Association

LONDON

9 Old SquareLincoln’s InnLondonWC2A 3SR

T 020 7405 9471E london@enterprisechambers.com

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