Heritable Bank Plc (Administrators of) The Winding Up Board of Landsbanki Islands HF [2011] ScotCS CSIH_61 (28 September 2011)

Heritable Bank Plc (Administrators of) The Winding Up Board of Landsbanki Islands HF [2011] ScotCS CSIH_61 (28 September 2011)

Decisions of the Icelandic winding-up board do not extinguish Heritable's claims for the purposes of set-off in Scottish administration proceedings. Scots law governs the operation of set-off and retention in Heritable's administration, and the withdrawal of Heritable's claims from Icelandic proceedings does not preclude their use as a defence against Landsbanki's claims in Scotland. Regulation 5 does not override Regulation 22 or the principle that only judicial decisions, not administrative ones, are binding for all purposes.

Citation
[2011] ScotCS CSIH_61
Parties
Respondents and Reclaimers: Heritable Bank plc (joint administrators); Noter and Respondent: The Winding-Up Board of Landsbanki Islands HF
Jurisdiction
Scotland
Judgment Date
28 September 2011
Procedural Posture
Reclaiming Motion / Appeal Against Lord Ordinary's Decision
Outcome
reclaiming motion allowed
Legal Topics
Set Off in Insolvency, Recognition of Foreign Insolvency Proceedings, Effect of Foreign Winding Up on Domestic Claims, Interpretation of EU Insolvency Directives
Insolvency Banking Cross Border Insolvency Set Off in Insolvency Recognition of Foreign Insolvency Proceedings Effect of Foreign Winding Up on Domestic Claims Interpretation of EU Insolvency Directives

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Parties

Heritable Bank plc (joint administrators)

Respondents and Reclaimers

The Winding-Up Board of Landsbanki Islands HF

Noter and Respondent

Procedural Posture

Reclaiming Motion / Appeal Against Lord Ordinary's Decision

Legal Issues

  1. 1 Whether Regulation 5 of the Credit Institutions (Reorganisation and Winding Up) Regulations 2004/1045 makes decisions of the Icelandic winding-up board binding in UK insolvency proceedings
  2. 2 Whether Heritable's claims against Landsbanki, withdrawn from Icelandic proceedings, can be used as set-off in Scottish administration
  3. 3 Whether discharge of debt under Icelandic law affects rights under Scots law

Ratio Decidendi

Decisions of the Icelandic winding-up board do not extinguish Heritable's claims for the purposes of set-off in Scottish administration proceedings. Scots law governs the operation of set-off and retention in Heritable's administration, and the withdrawal of Heritable's claims from Icelandic proceedings does not preclude their use as a defence against Landsbanki's claims in Scotland. Regulation 5 does not override Regulation 22 or the principle that only judicial decisions, not administrative ones, are binding for all purposes.

Court Disposition

reclaiming motion allowed

Orders

  • Lord Ordinary's interlocutor recalled
  • reclaimers' first plea-in-law sustained (in so far as it relates to statements 17 and 64 of the Note No.35 of process)