COVID-19, COMI and winding-up petitions

BUJ Architects LLP ("BUJ") secured a judgment against Investin Quay House Ltd ("Investin") in November 2019. BUJ subsequently presented a petition in July 2020.

Investin, a company registered in Jersey, objected to the petition on two grounds. Firstly, that COVID-19 had a financial effect on it such that the court may not make a winding-up order by reason of Schedule 10 of the Corporate Insolvency and Governance Act 2020 ("CIGA"). Secondly, that the court did not have jurisdiction to make a winding-up order as Investin’s COMI was in Jersey.

Schedule 10 of CIGA has been substantially amended with effect from 1 October 2021, removing the tests relating to the impact of COVID-19. As such, it is sufficient to say that Investin was unable to establish a prima facie case that it was adversely financially affected by COVID-19 and ICCJ Mullen was satisfied that the court would be able to make a winding up order (assuming it had jurisdiction).

In relation to jurisdiction, ICCJ Mullen confirmed that the test for COMI should be objective and that COMI should be ascertainable by third parties. Whilst Investin may have held board meetings in Jersey, the factors ascertainable to third parties, such as all the places in which the company pursued its economic activities, held assets, conducted negotiations and exercised management functions, all suggested its COMI was England. In light of that, ICCJ Mullen was satisfied that the court had the jurisdiction to make a winding up order.

BUJ ran an alternative argument on jurisdiction, which was considered in the event that the decision on COMI was wrong. BUJ suggested that Investin could be wound up as an unincorporated company. If the company's COMI is indeed in Jersey, ICCJ Mullen was satisfied that the court has jurisdiction to wind it up as an unregistered company.

Investin Quay House Ltd, Re [2021] EWHC 2371 (Ch) (also known as BUJ Architects LLP v Investin Quay House Ltd)

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