Restructuring plans and procedural fairness

The court ordered that a sanction be listed for a longer hearing, on the application of a creditor, even though the impact of that meant it would then delay the hearing by three months.

This application concerned a restructuring plan proposed by CB&I UK Limited and in particular addressed the competing interest of the company, in proposing a plan to a tight timescale, and those of a major creditor who need sufficient time to review the detail. 

On 28 September 2023, the court ordered that meetings be convened to consider a proposed restructure plan. At that hearing, the court ordered that the sanction hearing be listed for 27 November 2023, for four days. Shortly after this hearing, a group of creditors then applied for disclosure of various documents to enable those creditors to consider the plan. This application was contested, largely on the basis disclosure of that material would be considered excessive, and it was refused.

A second application was also heard to extend the length of the sanction hearing, made by one creditor owed around $1billion under a tribunal award who stood to recover “virtually nothing” if the plan was approved. That application was granted even though a consequence of doing that meant the hearing being adjourned and relisted for late February 2024.

This was more finely balanced particularly as the areas of dispute were ones of valuation, the plan impacted one major creditor in particular and there were complex issues to resolve. The court held concluded procedural fairness did demand a longer hearing and it would extend the length of it to allow sufficient time for the arguments to be properly put.

What is apparent from the judgment is that while the company argued the plan was urgent (and so resisted the longer hearing), the adjournment was a consequence of allowing proper time to allow an affected creditor a proper change to put its argument. This was not so urgent that it would be fatal if listed in February – a critical date was 27 March 2024. It may have been different if court was unable to accommodate a listing, but it could. The point was one of procedural fairness and that cut both ways.

In regards to CB&I UK Limited [2023] EWHC 2987 (Ch).

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