Buchler & Anor v. Talbot & Anor [2004] UKHL 9 (4 March 2004)

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United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Buchler & Anor v. Talbot & Anor [2004] UKHL 9 (4 March 2004)
URL: http://www.bailii.org/uk/cases/UKHL/2004/9.html
Cite as: [2004] 1 All ER 1289, [2004] 2 WLR 582, [2004] 2 AC 298, [2004] BCC 214, [2004] UKHL 9, [2004] 1 BCLC 281

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Judgments - Buchler and another (as joint liquidators of Leyland Daf Ltd) (Respondents) v Talbot and another (as joint administrative receivers of Leyland Daf Ltd) and others (Appellants) and others

HOUSE OF LORDS

SESSION 2003-04
[2004] UKHL 9
on appeal from: [2002] EWCA Civ 228

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Buchler and another (as joint liquidators of Leyland Daf Limited) (Respondents)

Talbot and another (as joint administrative receivers of Leyland Daf Limited) and others (Appellants) and others

THURSDAY 4 MARCH 2004

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Millett

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Buchler and another (as joint liquidators of Leyland Daf Limited) (Respondents)

v.

Talbot and another (as joint administrative receivers of Leyland Daf Limited) and others (Appellants) and others

[2004] UKHL 9

LORD NICHOLLS OF BIRKENHEAD

My Lords,

In England and Wales floating charges are a judge-made, or judge-approved, type of security. They originated in the early days of the development of company law in the 1870s. They are a means whereby a financier, typically a bank, provides a company with money on the security of the company's assets which continue to be used and turned over in the ordinary course of business until, when certain events happen, the charge 'crystallises' into a fixed charge on the assets then within its scope. Notable among crystallising events are the appointment of a receiver by the charge holder or the company being wound up.

Over the years floating charges have played an invaluable role in the development of business. They bridge a gap between businessmen and financiers. Businessmen need money but may have insufficient fixed assets to offer as security. Financiers have money but want security for any loans they make. They wish to rank ahead of the company's unsecured creditors if the business does not prosper. They wish to minimise their risks by having a charge over whatever assets a company may acquire in the course of carrying on its trade. Floating charges have provided a legal mechanism by which in these circumstances capital and business enterprise can be harnessed.

Typically a floating charge extends to substantially all the assets of a company. On its face this gives a charge holder a high degree of control over the assets and fortunes of a company. At times this has been seen to work unsatisfactorily. The security afforded by a floating charge on the assets of a business, and the charge holder's ability to enforce his security, should not always be allowed to prevail. More than once Parliament has intervened to correct perceived imbalance between the rights and interests of charge holders and the rights and interests of other persons. The most recent intervention was in the Enterprise Act 2002.

This appeal concerns the proper interpretation of a legislative intervention made in the early days of the history of floating charges. The issue is whether, when a company is being wound up, the costs and expenses incurred by the liquidator rank ahead of the claims of the holder of a charge which at its inception was a floating charge. The answer turns on the proper interpretation of what is now section 175(2)(b) of the Insolvency Act 1986.

The failure of the Leyland DAF group

The issue arises in the winding up of Leyland Daf Ltd, one of the companies in a group headed by DAF NV. The facts are set out lucidly in the opinion of my noble and learned friend Lord Millett. I need do no more than mention the salient features in the broadest terms. In March 1992 Leyland Daf Ltd granted a mortgage debenture to Stichting Ofasec, a Dutch foundation, to secure money loaned to the group. The debenture created fixed and floating charges over the assets of Leyland Daf Ltd in the accustomed fashion. Early in 1993 the DAF NV group collapsed. Ofasec appointed receivers under the mortgage debenture, whereupon the floating charge crystallised into a fixed charge.

The receivers proceeded to realise the assets comprised in the charges. They paid the receivership preferential creditors, totalling £8m. They made substantial interim distributions to Ofasec, the debenture holder. The receivers now hold, from realisations and interest, £72m. Litigation in the Netherlands, which is still continuing, has raised the prospect that these proceeds will be insufficient to meet the claims of those entitled to share in the debenture security.

Leyland Daf Ltd went into creditors' voluntary winding up on 24 July 1996. The liquidators estimate that, excluding intra-group claims, the debts owing to unsecured creditors amount to £125m. Liquidators' realisations amount to £1.5m but estimated liquidation costs and expenses far exceed this amount. They total £10m. The question raised by this appeal, stated shortly, is whether the liquidation costs and expenses should be paid out of amounts realised by the charged assets in priority to the claims of the debenture holder.

The legislation

The relevant law starts with the statutory creation of a class of preferential debts in the 19th century. The Companies Act 1883, section 4, made provision that to a defined extent unpaid wages and salaries of clerks, servants, labourers and workmen should be paid before all other debts in the distribution of the assets of a company being wound up under the Companies Acts 1862 and 1867. They were to rank equally among themselves and be paid in full unless the assets of the company were insufficient to meet them. Then they would abate rateably: section 5. Subject to retaining the amount needed 'for the costs of administration or otherwise' the liquidator was to discharge these preferential debts 'forthwith' as and when assets come into the liquidator's hands: section 6.

In 1888 the scope of preferential debts was widened to include rates and taxes falling due, in short, within a period of twelve months preceding the commencement of the winding up: see section 1 of the Preferential Payments in Bankruptcy Act 1888.

These successive statutory provisions did not affect the proprietary rights of chargees. The secured claims of debenture holders are pursued, not in the winding up, but by enforcement of the debenture holders' proprietary rights as chargees of the assets in question: In re David Lloyd & Co (1877) 6 Ch D 339. Thus under the Acts of 1883 and 1888 the preferential debts continued to rank behind the claims of debenture holders under a floating charge created by the company. The legislation gave preferential creditors a limited degree of priority in the winding up of a company, but their status remained that of unsecured creditors. As such, along with other unsecured creditors they could lay no claim to assets charged to a debenture holder unless and until all payments secured by the debenture had been made.

In practice this meant that unpaid workers, although accorded priority in a winding up, often received nothing. The debenture holder, by virtue of his (crystallised) floating charge, scooped the pool. There was no surplus available for distribution among unsecured creditors, preferential or otherwise.

The law in this regard was changed by the Preferential Payments in Bankruptcy (Amendment) Act 1897. Section 2 of this Act, 'the 1897 Act', is of prime importance on this appeal. Section 2 provided:

The 1897 Act made corresponding provision for what should happen if a debenture holder appointed a receiver or took possession of property comprised in a floating charge when the company was not being wound up. Section 3 provided that in such a case 'the debts mentioned in section one of the said Preferential Payments Act shall be paid forthwith out of any assets coming to the hands of the receiver, or other person taking possession as aforesaid, in priority to any claim for principal or interest in respect of such debentures'.

To my mind the effect of section 2 admits of no doubt or ambiguity in the relevant respect. Thenceforth preferential debts as defined in the 1888 Act were to be paid out of the property comprised in a floating charge so far as the non-charged assets were insufficient to discharge those debts. The proprietary rights of a debenture holder were, to that extent, bitten into. That was the object and effect of the provision.

I can see nothing in this provision to suggest that, additionally, liquidation expenses as such were thenceforth to be discharged out of the charged property. These expenses are not mentioned in section 2. The priority accorded by section 2 over the holder of a floating charge was confined to the 'debts' mentioned in section 1 of the 1888 Act. The language is unequivocal.

Nor is there any ground for implying such an additional incursion into the debenture holders' rights in respect of their charged property. In distribution of non-charged assets of the company liquidation expenses rank ahead of the claims of preferential creditors. But, unlike the non-charged assets, the charged assets belong to the debenture holders to the extent of the amounts secured. There is nothing inherently surprising in Parliament deciding that in future the proprietary interests of a debenture holder in his fund, that is, the charged assets, shall be eroded to the extent of the claims of preferential creditors without making any similar incursion in respect of liquidation expenses. The fact that liquidation expenses enjoy priority over the claims of preferential creditors in a winding up is not of itself a reason for according to liquidation expenses the like priority in respect of charged assets. As vividly illustrated by the facts in the present case, according a like priority in respect of liquidation expenses would represent a potentially major additional incursion into the proprietary interests of debenture holders.

This additional incursion, for which the liquidators contend on this appeal, would not be confined to cases where the company being wound up has preferential creditors. Trading companies usually do have preferential creditors when they go into liquidation. But the argument advanced by the liquidators on this appeal is that section 2 of the 1897 Act, concerned as it is with according priority to preferential creditors, had the additional effect of encroaching upon the proprietary interests of debenture holders in the charged assets in respect of liquidation expenses in all cases, that is, whether or not there existed preferential debts. I can see nothing in the language or context of this section to justify the court so interpreting this section.

A prominent feature of Mr Snowden's submissions was that when enacting section 2 of the 1897 Act Parliament must have intended that the liquidator should be paid costs and expenses incurred by him in discharging the statutory obligation imposed by that section. It is implicit in this statutory provision, he submitted, that these costs and expenses, necessarily incurred in achieving the statutory objective, would themselves be payable out of the charged assets ahead of the claims of debenture holders.

There is force in this submission. When interpreting statutes courts seek to further the expressed intention of Parliament by having due regard to the practicalities involved in implementing that intention. Thus, costs incurred by liquidators in realising charged assets are payable ahead of the debenture holder's claims: In re Regents Canal Ironworks Co (1875) 3 Ch D 411, 427, per James LJ. Likewise, as it seems to me, if there are no uncharged assets and the liquidator reasonably incurs costs and expenses in identifying preferential creditors and paying them pursuant to the statutory obligation: those administrative costs and expenses, which are likely to be modest in amount, will be payable ahead of the debenture holder, just as much as they would be if the debenture holder himself, or a receiver appointed by him, had incurred costs and expenses in discharging this statutory duty.

Building on this base Mr Snowden submitted that section 2 had a wider effect. Although section 2 did not expressly refer to liquidation expenses, the inclusion of charged assets '[i]n the winding up' of a company under section 2 necessarily also had the effect of subjecting the charged assets to payment of the costs and expenses of the liquidator incurred in the winding up. I do not agree. Costs and expenses incurred in discharging the particular duty imposed by section 2 of the 1897 Act, or its modern equivalent, are one matter, the liquidation costs and expenses as a whole are quite another. Mr Snowden's foundation stone does not form an adequate base for the purpose for which he seeks to use it.

Later legislation

Successive consolidating statutes of 1908, 1929 and 1948 reproduced the effect of these provisions of the Acts of 1888 and 1897 without relevant amendment in intervening amending legislation. There were changes in the definition of preferential debts but these are not material to the purpose in hand. There were also changes in lay-out and minor changes in language. As already noted the 1883 Act, replaced by the 1888 Act, and the 1897 Act effected two separate changes in the law regarding preferential debts when a company was in course of being wound up: preferential debts were given priority over other unsecured debts and, additionally, over debenture holder's claims under a floating charge. In the Companies (Consolidation) Act 1908 these two distinct changes were telescoped into a single section. This format has been retained ever since. The current statutory provision is section 175 of the Insolvency Act 1986:

In this Act a floating charge means a charge which 'as created' was a floating charge: section 251. This was a change introduced by the Insolvency Act 1985, section 108(3) and Schedule 6, paragraph 15. This change in the law fills a loophole mentioned by Hoffmann J in In re Brightlife [1987] Ch 200, 211. This change does not affect the point now under consideration.

Section 175(1) and (2)(a) of the Insolvency Act 1986 derives indirectly from section 1 of the 1888 Act. The phrase 'after the expenses of the winding up' is the modern equivalent of 'the costs of administration or otherwise' in section 1(3) of the 1888 Act and 'costs and expenses of the winding up' in section 209(3) of the 1908 Act. Section 175(2)(b) derives indirectly from section 2 of the 1897 Act, reproduced as section 209(2)(b) in the 1908 Act. There is no reason to suppose that the change in lay-out from the earlier statutes, or that these and other minor linguistic changes, were intended to achieve a different result from that obtaining under the Acts of 1888 and 1897. On the contrary, in my view the telescoped provisions of section 175 of the Insolvency Act 1986 are, for the purpose in hand, apt to produce the same result as section 2 of the 1897 Act.

The Barleycorn decision

In the courts below Rimer J and the Court of Appeal, comprising Peter Gibson, Chadwick and Longmore L JJ, reached the contrary decision: see [2001] 1 BCLC 419, [2002] 1 BCLC 511. They were bound to do so, by the decision of the Court of Appeal in In re Barleycorn Enterprises Ltd [1970] Ch 465. In that case the issue now under consideration arose in the context of the relevant section of the Companies Act 1948, section 319. The Court of Appeal, comprising Lord Denning MR and Sachs and Phillimore L JJ, held that from 1897 the property comprised in a floating charge forms part of the 'assets' of a company for the purposes of paying (1) costs and expenses of winding up as well as (2) preferential debts. For the reasons given above I respectfully disagree with limb (1) of this proposition.

I would allow this appeal.

LORD HOFFMANN

My Lords,

The reasoning of the Court of Appeal in this case goes as follows. The expenses of winding-up are payable out of an insolvent company's funds in priority to the claims of unsecured creditors, whether preferential or otherwise. The claims of preferential creditors, so far as unpaid out the company's funds, are payable out of the debenture-holder's funds. It therefore follows that the expenses of winding up are payable out of the debenture-holder's funds.

I find this hard to follow. If A has priority over B in respect of payment out of the proceeds of Blackacre and B has priority over C in respect of payment out of the proceeds of Whiteacre, why does it follow that A has any right to payment out of Whiteacre? But that was the reasoning of the Court of Appeal in In re Barleycorn Enterprises Ltd [1970] Ch 465, which was not merely followed but endorsed by the Court of Appeal in this case.

The winding up of a company is a form of collective execution by all its creditors against all its available assets. The resolution or order for winding up divests the company of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities: Ayerst (Inspector of Taxes) v C & K (Construction) Ltd [1976] AC 167. It is a special kind of trust because neither the creditors nor anyone else have a proprietary beneficial interest in the fund. The creditors have only a right to have the assets administered by the liquidator in accordance with the provisions of the Insolvency Act 1986: see In re Calgary and Edmonton Land Co Ltd (In liquidation) [1975] 1 WLR 355, 359. But the trust applies only to the company's property. It does not affect the proprietary interests of others.

When a floating charge crystallises, it becomes a fixed charge attaching to all the assets of the company which fall within its terms. Thereafter the assets subject to the floating charge form a separate fund in which the debenture holder has a proprietary interest. For the purposes of paying off the secured debt, it is his fund. The company has only an equity of redemption; the right to retransfer of the assets when the debt secured by the floating charge has been paid off. It is this equity of redemption which forms part of the fund held on trust for the company's creditors which arises upon a winding up.

Putting aside any fixed charges, the position is therefore that if a company is in both administrative receivership and liquidation, its former assets are comprised in two quite separate funds. Those which were subject to the floating charge ("the debenture-holder's fund") belong beneficially to the debenture-holder. The company has only an equity of redemption. Those which were not subject to the floating charge ("the company's fund") are held in trust for unsecured creditors. In the usual case in which the whole of the company's assets and undertaking are subject to the floating charge, the company's fund will consist only of the equity of redemption in the debenture-holder's fund.

In principle, each fund bears its own costs. The expenses of the administrative receivership are borne by the debenture-holder's fund. The expenses of winding up are borne by the company's fund. The debenture-holder has no interest in the winding up and the unsecured creditors have no interest in the administrative receivership. So there is no reason why either group should contribute to the expenses of the other. Occasionally (for example, if no receiver has been appointed) a liquidator will realise an asset forming part of the debenture-holder's fund. As the debenture-holder is entitled to the proceeds, it is right that he should pay the cost of realisation: see In re Regent's Canal Ironworks Company (1875) 3 Ch App 411. But the debenture-holder has no liability for the general costs of the winding up.

The general rule is that unsecured creditors are entitled to share pari passu in the company's fund. But the Companies Act 1883 introduced (by analogy with the law of bankruptcy) the concept of preferential debts, to be paid out of the company's fund in priority to other unsecured creditors. Section 1 of the Preferential Payments in Bankruptcy Act 1888 listed these claims and said that "in the distribution of the assets of any company being wound up under the Companies Act 1862" they should be paid in priority to all other debts.

Section 2 of the Preferential Payments in Bankruptcy (Amendment) Act 1897 extended the rights of preferential creditors by giving them a claim on the debenture-holder's fund:

The provisions of the 1888 and 1897 Acts have since been consolidated and reproduced in successive Companies Acts and are now contained in section 175 of the Insolvency Act 1986. But there is nothing to suggest that any of these consolidating Acts was intended to alter the effect of the original Acts. So the question is whether the 1897 Act changed the rule that the costs of winding up are payable out of the company's fund and not out of the debenture-holder's fund.

The 1897 Act is not a particularly sophisticated piece of legislation. It says that if preferential creditors have not been paid out of the company's fund, they shall be entitled to resort to the debenture-holder's fund. It has absolutely nothing to say about the costs of the winding up. And there is no reason why it should have impliedly changed the law on this point.

The contrary reasoning of the Court of Appeal in In re Barleycorn Enterprises Ltd [1970] Ch 465 is best exemplified by a quotation from the judgment of Phillimore LJ, at p 476:

This passage is, with all respect, a complete muddle. It amounts to saying that the judge cannot see the logic of making the question of which fund should bear the costs depend upon whether they were incurred in connection with that fund. It ignores the proprietary interest of the debenture holder in the debenture holder's fund and treats it and the company's fund as a single massed fund in which there is a single order of priorities. But there is nothing in the 1897 Act or any subsequent legislation which can have brought about the radical change of depriving the debenture-holder of his proprietary interest in the debenture-holder's fund and giving him instead a preferential claim (after the expenses of winding up and the preferential creditors but before the unsecured creditors) in a single amalgamated fund.

For these reasons and those of my noble and learned friend Lord Millett, I think that In re Barleycorn Enterprises Ltd [1970] Ch 465 was wrongly decided and I would allow the appeal.

My Lords,

The question in this appeal, as formulated by the parties, is whether the expenses incurred by a liquidator in winding up an insolvent company are payable out of the assets comprised in a crystallised floating charge in priority to the claims of the charge holder. The question assumes importance only where, as is unfortunately often the case, the company has insufficient uncharged (or "free") assets to meet the costs of the winding up. The Judge (Rimer J) and the Court of Appeal (Peter Gibson, Chadwick and Longmore LJJ) held that in such circumstances they are so payable.

In reaching this decision the Court of Appeal, as they were bound to do, followed the reasoning of the Court of Appeal (Lord Denning MR, Sachs and Phillimore LJJ) in In re Barleycorn Enterprises Ltd, Mathias and Davies (a Firm) v Down [1970] Ch 465. In that case the charge did not crystallise until the company was ordered to be wound up and no receiver was ever appointed, so that the assets in question, though subject to the floating charge, remained under the control of the liquidator. The Court of Appeal decided that in such a case the expenses of the winding up are payable out of the assets subject to the charge in priority to both the preferential creditors and the claims of the charge holder. In the present case the charge holder appointed receivers who collected and realised the assets subject to the floating charge and paid the preferential creditors before the commencement of the winding up. The earlier decision is thus technically distinguishable; but it cannot sensibly be distinguished, for its rationale applies as much to the one situation as to the other. The question for the House, therefore, is whether Barleycorn was rightly decided.

As formulated, the question appears to be concerned with priorities. But the real question is whether the expenses of a winding up are payable out of charged assets at all. If they are, there is no doubt that they are payable in priority to the claims of the charge holder. If they are not, questions of priority do not arise.

The facts

The facts are not in dispute. They are set out in full in the judgment of Rimer J reported at [2001] BCLC 419 at pp 420-422 and may be briefly summarised. The company in liquidation is Leyland Daf Limited ("the Company"), an English company and a member of a Dutch group of companies. In 1992 the company issued debentures which contained a floating charge over the whole or substantially the whole of its undertaking. In the following year the group collapsed and the charge holder appointed joint administrative receivers ("the receivers"). On their appointment the floating charge crystallised into a fixed charge. The receivers proceeded to realise the assets comprised in the charge and paid the debts (amounting to some £8m) which were preferential in the receivership. They also made interim distributions of some £110m to the charge holder towards satisfying the secured indebtedness. At the time of the hearing before Rimer J the receivers still held some £61m derived from the assets that were subject to the charge. That figure has since increased (with interest and other realisations) to some £72m.

On 24 July 1996, that is to say more than three years after the Receivers' appointment, the company went into creditors' voluntary liquidation and the respondents ("the liquidators") were appointed joint liquidators.

Liquidation expenses to date, including the liquidators' remuneration and corporation tax, amount to over £9.5m before VAT and interest on overdue accounts. This figure does not include any provision for future costs of the liquidation, which are unquantifiable but are said to be likely to exceed £1m. The liquidators have been able to realise only some £1.4m. Furthermore proceedings are still pending in the Netherlands which may have the result that the charged assets are insufficient to meet the claims of the secured creditors. There are thus likely to be insufficient free assets to meet the expenses of the liquidation, and unless the charged assets are available to pay them in priority to the claims of the charge holder there will be nothing with which to pay the greater part of the costs of winding up the Company.

In these circumstances the liquidators have sought and obtained from the courts below a declaration that the liquidation expenses are payable out of the charged assets in the receivers' hands in priority to the claims of the secured creditors.

Two matters should be mentioned at this point. First, the liquidators make no claim to money which was distributed by the receivers to the charge holder before the commencement of the winding up. Secondly, the present proceedings raise a question of principle. They are not concerned with the propriety or proper amount of any particular sum claimed to be an expense of the liquidation.

The current statutory provisions

The question turns on the proper construction of sections 40(2) and 175(2)(b) of the Insolvency Act 1986 ("the 1986 Act"); although of these only section 40 is strictly applicable. Sections 40 and 175 of the 1986 Act are in the following terms:

Section 40 is contained in Part III of the Act which forms part of a group of sections headed "Provisions applicable to every receivership." It contains no reference to the expenses of the winding up, which would be out of place in a section dealing with receivership. Section 175 is contained in Part IV of the Act and forms part of a group of sections headed "Provisions of general application in winding up." Subsection (2)(a) contains a reference to the expenses of the winding up but only to confirm their priority over the preferential debts when these are being paid in the winding up. Both sections are concerned exclusively with the priority of preferential debts, one in a receivership, where they are given priority to the claims of the charge holder, and the other in a winding up, where they are postponed to the expenses of the winding up but are given priority to the claims of the charge holder.

The relevant statutory provisions have a long history, having been introduced in two stages towards the end of the 19th Century and successively re-enacted in later Acts in substantially similar terms. At the first stage a class of unsecured debts was given priority in a winding up. At the second stage such debts were made payable so far as necessary out of the assets comprised in a floating charge (but not out of the assets comprised in a fixed charge) in priority to the claims of the holder of the charge.

Provision for the preferential payment of wages and salaries due to certain classes of employees was introduced in personal bankruptcy in 1825 and was extended to the winding up of companies by the Companies Act 1883 ("the 1883 Act"). Section 4 of the 1883 Act provided that

certain categories of debts should be paid in priority to others. Section 5 provided that such debts should rank equally among themselves and be paid in full unless there were insufficient assets to meet them, in which case they should abate in equal proportions among themselves. Section 6 made it clear that payment of the costs and expenses of the winding up took priority over the preferential debts. These sections were re-enacted in the like terms by section 1 of the Preferential Payments in Bankruptcy Act 1888 ("the 1888 Act").

Bankruptcy and companies liquidation are concerned with the realisation and distribution of the insolvent's free assets among the unsecured creditors. They are not concerned with assets which have been charged to creditors as security, whether by way of fixed or floating charge. Secured creditors can resort to their security for the discharge of their debts outside the bankruptcy or winding up. Assets subject to a charge belong to the charge holder to the extent of the amounts secured by them; only the equity of redemption remains the property of the chargor and falls within the scope of the chargor's bankruptcy or winding up. As James LJ observed in In re Regents Canal Ironworks Co, Ex p Grissell (1877) 3 Ch. D. 411, 427 charge holders are creditors

Such a creditor is a person who

per James LJ in In re David Lloyd & Co. (1877) 6 Ch D 339, 344.

The 1883 and 1888 Acts were concerned with the distribution of "the assets of any company being wound up". They were not concerned with assets to the extent to which they belonged to secured creditors, and accordingly did not affect assets over which the company had given a charge whether fixed or floating. Preferential creditors were thus given priority over other unsecured creditors in the distribution of the company's free assets, but like them were postponed to the expenses of the winding up and had no right to be paid out of any charged assets.

After several successive re-enactments these provisions are now reproduced in sections 175(1) and (2)(a) of the 1986 Act where the language has been modernised but (save for the definition of "a floating charge") without effecting any change of substance. Section 175(1) opens with the words "In a winding up" and like their predecessors subsections (1) and (2)(a) are concerned with the distribution of the assets in a winding up, that is to say with the distribution of the company's free assets after the costs and expenses of the winding up have been paid or provided for.

It would clearly have been inappropriate to allow unsecured but preferential debts to be paid out of assets charged by way of fixed charge in priority to the claims of the holder of the charge. This would have been an unwarranted interference with the property rights of the charge holder. By making it very difficult for businesses to raise money on the security of their assets it would also have been contrary to the interests of both lenders and borrowers. But the development of the floating charge, which enabled a company to grant a charge over the whole or substantially the whole of its undertaking, and which was still of recent origin in 1883, changed the picture. The existence of a floating charge deprived the preferential creditors of much of the benefit which the 1883 and 1888 Acts were intended to give them. It enabled the charge holder to withdraw all or most of the assets of an insolvent company from the scope of the winding up and leave the liquidator with little more than an empty shell and nothing with which to pay preferential debts. Accordingly the Preferential Payments in Bankruptcy (Amendment) Act 1897 ("the 1897 Amendment Act") made the preferential debts payable if and so far as necessary out of the proceeds of a floating charge in priority to the debt secured by the charge.

The 1897 Amendment Act did not affect the operation of the 1888 Act in any relevant respect. The 1888 Act continued to govern the payment of preferential debts out of the assets comprised in the winding up. What the 1897 Amendment Act did was to allow the preferential creditors recourse if necessary to a further source for payment of their debts, viz the assets comprised in a floating charge. Section 2 applied in a winding up (whether or not there was also a receivership). Section 3 applied in a receivership (but only if the company was not in the course of being wound up at the relevant date).

Section 2 of the 1897 Amendment Act provided that in the winding up of a company the preferential debts should, so far as the assets of the company available for payment of general creditors were insufficient to meet them, have priority over the claims of holders of any floating charge and be paid accordingly out of the property comprised in such charge. This later became section 319(5) of the Companies Act 1948 ("the 1948 Act") and is now section 175(2)(b) of the 1986 Act.

It is necessary to appreciate what section 2 of the 1897 Amendment Act and its successors did and, even more importantly, what they did not do. They applied in the winding up of a company where the assets available for payment of general creditors were insufficient to meet the preferential debts in full. So the assets available for payment of general creditors in a winding up remained the primary source of payment of the preferential debts. Such assets do not include charged assets, which are not available for payment of the general body of creditors until the claims of the charge holder have been satisfied. They are what remains of the company's free assets after the expenses of the winding up have been paid or provided for. The greater such expenses the less that is left for the general creditors and consequently the less that is available for the preferential creditors. So far as there were insufficient assets after the expenses of the winding up had been paid or provided for to enable the preferential debts to be paid in full, section 2 of the 1897 Amendment Act and its successors made them payable out of the assets subject to the floating charge.

But section 2 and its successors did not authorise any of the costs and expenses of the winding up to be paid out of the assets subject to the floating charge, nor was there any reason for them to do so. Of course, if there were insufficient free assets to meet the expenses of the winding up in full, there would be nothing left to meet the preferential debts, and the whole of those debts would fall to be paid out of the assets comprised in the floating charge. There would also be nothing with which to pay the balance of the expenses of the winding up. Like the debts due to the ordinary unsecured creditors these would remain unpaid. But so they would before 1897: James LJ had already drawn attention to the fact that those who render services to an insolvent company or person frequently find that they have to go without payment, a result which did not strike him as unjust: see the Regents Canal case 3 Ch D 411, 426. If this was a hardship, it was not one which the 1897 Amendment Act was intended to remedy. Its purpose was to provide a secondary fund for the payment of the preferential debts, not to relieve liquidators by making new provision for the payment of the costs of a winding up at the expense of the holder of a floating charge.

Section 3 of the 1897 Amendment Act applied if, and only if, (i) a receiver was appointed under a floating charge; or (ii) possession was taken by or on behalf of the charge holder of any property comprised in such a charge; and (iii) the company was not at the time in course of being wound up. In such a case preferential debts were made payable out of any assets coming to the hands of the receiver or charge holder in priority to any principal and interest secured by the charge. The section also provided that any payments to preferential creditors should be recouped as far as might be out of the assets available for general creditors.

Section 3 is now reproduced partly in section 40 of the 1986 Act (where a receiver is appointed) and partly in section 196 of the Companies Act 1985 as substituted by Schedule 13 Part 1 of the 1986 Act (where possession of any of the charged assets is taken by or on behalf of the charge holder).

The effect of sections 2 and 3 of the 1897 Amendment Act taken together was to make the company's free assets the primary source for the payment of preferential debts but only after the costs of winding up the company had been paid or provided for. To the extent that such free assets were insufficient to pay the preferential debts in full, the balance of such debts (but not unpaid liquidation expenses) was payable out of the assets comprised in the charge in priority to the principal and interest secured by the charge. Any such payment would reduce the amount available for the discharge of the debt secured by the charge and might leave it partly or wholly unpaid. The receiver's duty (or that of the charge holder who had taken possession of the charged assets) was to pay the preferential debts "forthwith"; and it was possible that they would be paid out of the assets comprised in the charge even though it later appeared that there were free assets available out of which they ought to have been paid. In such circumstances the charge holder, to the extent that the secured debt was not discharged, was entitled to recoup such payments by participating in the distribution of the company's free assets in the winding up after the expenses of the winding up had been paid or provided for.

The costs of realisation

In considering the incidence of the costs and expenses of the winding up it must be borne in mind that there are two distinct funds: (i) the proceeds of the free assets which belong to the company and are administered by the liquidator in a winding up and (ii) the proceeds of the assets comprised in a floating charge which belong to the charge holder to the extent of the security and are administered by the receiver. In principle, and save to the extent, if any, that statute may make provision to the contrary, the costs of administering each fund are borne by the fund in question. In principle, therefore, the expenses of a winding up are borne by the assets comprised in the winding up, that is to say the company's free assets, and the expenses of a receivership are borne by the assets comprised in the floating charge.

The costs of realising a particular property, however, must be distinguished from the general expenses of the winding up or receivership. The costs of realisation are deductible from the proceeds of the property realised, whether it is realised by the liquidator or the receiver, for it is only the net proceeds of the property which are comprised in the winding up or receivership as the case may be. Costs incurred in preserving an asset are treated in the same manner. The costs of preserving or realising assets comprised in a floating charge, if incurred by the liquidator, may therefore be recouped by him out of the charged assets in priority to the claims of the charge holder: see the Regents Canal case 3 Ch D 411, 427.

In re Barleycorn Enterprises Ltd

These principles were well understood before Barleycorn [1970] Ch 465, but they were subverted by the decision of the Court of Appeal in that case, which decided for the first time that the costs of winding up a company were payable out of property comprised in a floating charge (which had crystallised when the company was ordered to be wound up) in priority to the claims of the holder of the charge.

The case concerned a company which went into compulsory liquidation after having granted its bank a floating charge over the whole of its undertaking. At the date of the winding up order its assets amounted to £4,744. Preferential debts amounted to £5,161; the debt secured by the floating charge amounted to £6,972, of which £3,000 represented money advanced for wages and was included in the figure of £5,161.

On any view the preferential debts exhausted all the assets. There was nothing left for the general body of unsecured creditors or for the bank as the holder of a floating charge. There was no advantage to be gained by appointing a receiver or taking possession of the charged assets and the bank did not do so. The Official Receiver instructed a firm of chartered accountants to prepare a statement of affairs for the purpose of the winding up. This was a proper expense of the winding up, and the question (as formulated by Lord Denning MR) was whether it ranked behind the preferential debts and the claims of the bank, or whether it came first. The Court of Appeal held that it came first and was payable in priority to the preferential debts.

It may be observed in passing that this ruling was exclusively at the expense of the preferential creditors. On any view the bank was due to receive nothing by virtue of its security. The Court of Appeal's decision had the result that a statute passed for the benefit of the company's workers could well benefit the liquidator (by enabling him to recoup his expenses of administering one fund by taking them out of another for the administration of which he was not responsible) without benefiting the workers at all. A curiosity of the case is that there would have been no answer to the accountants' claim if they had persuaded the bank to release its security, which was worthless. But the bank would no doubt have refused to do so, since it was also the largest single preferred creditor.

Lord Denning MR, with whose judgment Sachs and Phillimore LJJ agreed, acknowledged, at p 473, that in the 1883 Act the word "assets" meant only the company's free assets, and that "in those days" when a floating charge crystallised on a winding up the property comprised in the charge did not belong to the company but to the charge holder. If the floating charge covered all the property of the company the charge holder took it all, subject only to the costs of realising it. But, he said, in 1888 and 1897 Parliament began to use the word "assets" in a different sense to include not only the free assets but also all those assets which were subject to the floating charge. It used the words in this new sense in the statute which created, for the first time, preferred payments in a winding up.

Although it does not affect his reasoning, Lord Denning's chronology was at fault and his references to 1888 and the 1888 Act were a slip. Preferential payments were created for the first time in corporate insolvency by the 1883 Act, not the 1888 Act; and if Parliament gave such payments priority over the floating charge it was by the 1897 Amendment Act, not by the 1888 Act which merely re-enacted the 1883 Act. But nothing turns on this.

Lord Denning acknowledged that it was "unusual" (a better word might have been "unprecedented" or even "heretical") to interpret a later statute as changing the meaning of a word in an earlier one without changing the word itself but, he said, this was necessary in order to make sense of the legislation as a whole. He cited the then current section 319 of the 1948 Act and emphasised the word "assets" in subsections (5)(a) (now section 175(2)(a) of the 1986 Act) and (6) (repealed by the 1986 Act and replaced by the insertion of the words "after the expenses of the winding up" in section 175 (2)(a)). He contrasted the word "assets" with the expression "the assets of the company available for payment of general creditors" in subsection (5)(b) (now section 175(2)(b) of the 1986 Act). These passages, he said, showed that since 1897 the holder of a floating charge could no longer sweep up all the company's property for his own benefit. The costs and expenses of the winding up had to be paid before the charge holder took any of it. Accordingly, he ruled, the order of payment was: (i) the costs of the winding up; (ii) the preferential payments; (iii) the bank as holder of the floating charge; (iv) the unsecured creditors.

This is certainly the correct order of payment out of the company's free assets. These fall to be administered by the liquidator in the winding up and unless otherwise provided the costs of administering them are payable out of them in priority to the claims of creditors. But there was nothing in the 1897 Amendment Act or section 319 of the Companies Act 1948 to make them payable out of the charged assets.

With all respect to Lord Denning, I think that his reasoning was based upon a misreading of section 319. He recognised that the "assets of the company available for payment of general creditors" means the company's free assets; they cannot possibly include assets which have been charged in favour of a third party and which are consequently not available for payment of general creditors. By contrasting this expression with the use of the word "assets" alone in subsections (5)(a) and (6) he evidently reasoned that the latter expression included the charged assets also.

In the context of a winding up the most natural meaning of the words "the assets" is "the assets of the company being wound up", that is to say its free assets. Once the words are extended to include assets charged in favour of a third party by way of security it is difficult to see why they include assets subject to a floating charge but not a fixed charge. But in fact a close analysis of section 319 shows that the word "assets" in subsections (5)(a) and (6) means the company's free assets.

Subsection (5)(a) explains how the preferential debts are to rank among themselves. It is ancillary to subsection (1), which directs that in a winding up certain classes of debts are to be paid in priority to all other debts. This carries the necessary implication that they are payable out of the same fund, for unless the debts are competing with one another for payment out of the same fund there can be no question of priority between them. The "other debts" of the company are payable exclusively out of its free assets; and a direction that preferential debts must be paid in full in priority to them unless "the assets" are insufficient to meet them is a direction to pay them in full in priority to the other debts unless the assets out of which they are both payable, i.e. the free assets, are insufficient to meet them.

Subsection (6) was also ancillary to subsection (1) and was purely procedural. It was concerned with timing of payment and proof of debt. It was in the following terms:

The first part of the subsection down to the words "so far as the assets are sufficient to meet them" provided for immediate payment of the preferential debts. It was taken almost verbatim from section 6 of the 1883 Act, which did not authorise payment of such debts out of assets comprised in a floating charge, and where, as Lord Denning accepted, at p 473, the words "the assets" meant the company's free assets. The last part of the subsection, which dispensed with the need for formal proof of certain preferential debts, was added by the Companies Act 1929. The subsection was re-enacted by section 614 of the Companies Act 1985 and then repealed and replaced by the insertion of the words "after the expenses of the winding up" in section 175(2)(a) of the 1986 Act which, it will be remembered, is the current re-enactment of the 1883 Act which gave the preferential debts priority in the distribution of the company's free assets.

The statutory history alone is sufficient to demonstrate that "the assets" in section 319(6) meant the company's free assets and did not include the assets comprised in a floating charge. But this is also borne out by the language of the subsection itself. The "foregoing debts" which are to be discharged forthwith "so far as the assets are sufficient to meet them" are the preferential debts which subsection (1) has directed shall be payable "in priority to all other debts". The "other debts" are the debts of the company as at the date of the winding up which are payable out of the company's free assets alone. They do not include the costs and expenses of the winding up itself, which retain their priority over the debts whether preferential or not. In directing that the preferential debts should be paid "forthwith", therefore, it was necessary to preserve the priority of the costs and expenses of the winding up by authorising the liquidator to retain sufficient sums to meet the anticipated costs and expenses of the winding up before paying the preferential debts.

Accordingly section 319 provided that preferential debts should (i) be paid in priority to (and therefore out of the same fund as) all other debts (which were payable out of the company's free assets alone) but only after the costs and expenses of the winding up had been paid or provided for; and (ii) be paid (so far as "the assets" were sufficient to meet them) "forthwith" subject to the retention of sufficient funds to meet such costs and expenses. In this context "the assets" must mean the assets out of which the preferential and other debts both were payable, that is to say the company's free assets. The liquidator was not authorised to retain any part of the assets comprised in a floating charge, which would have to bear the costs and expenses of any receivership, to meet the additional costs of a winding up in which the charge holder did not participate and from which he derived no benefit.

Subsection (5)(b), re-enacting section 2 of the 1897 Amendment Act, preserves the priority of the expenses of the winding up and gives the preferential debts priority over the claims of the charge holder but only in the distribution of "the assets of the company available for payment of general creditors". This expression confirms the priority of the liquidation expenses but only out of the company's free assets, and it is used, not (as Lord Denning seems to have assumed) in contrast to the term "the assets" in subsections (5)(b) and (6), but in contrast to "any property comprised in or subject to that charge".

The decision in Barleycorn was clearly contrary to the understanding of the profession at the time. Lord Denning dismissed the statements to the contrary in all the standard text books (Buckley, Gore-Browne, Palmer, Pennington, Halsbury) as simply erroneous. He preferred instead a comment in the 1938 10th edition of "the little book by Mr. Topham on Company Law" which was written for students (see p 475). I think that Lord Denning misunderstood the passage in question. Mr. Topham wrote, at p 280, that the preferential payments must be paid before the debenture holders "but not before the costs of liquidation": In re Glyncorrwg Colliery Co Ltd [1926] Ch 951. That was a receivership case; it established that the costs of the receivership (including the cost of realising the property comprised in the charge) had priority to the claims of the charge holder. Mr. Topham cannot have meant that the liquidation expenses also had priority over the claims of the charge holder. He was also the joint author of the 1933 15th edition of a standard practitioner's book, Palmer's Company Law, which stated, at p 457 that the costs and expenses of the winding up were payable in priority to all other claims; but that

It seems likely that in his students' handbook Mr. Topham used the word "liquidation", not as meaning "winding up", but as meaning "realisation".

I think that Lord Denning may have trapped himself by his own formulation of the question. By describing the case as one which involved a question of priorities, he may have made the unarticulated assumption that the claims in question were payable out of the same fund in competition with one another. They were not. There were no free assets to be administered in the winding up, and nothing out of which the costs and expenses of the liquidation could be paid. The assets in the liquidator's hands were all subject to a floating charge which had crystallised on the winding up, and subject to the costs of realising and distributing them (which did not include the preparation of a statement of affairs for the Official Receiver) they were payable to the preferential creditors and (had the funds been sufficient) to the bank as holder of the floating charge.

Phillimore LJ said that he found it very difficult to defend the logic which would make the order of priority as between costs and preferential debts dependent upon whether or not there was a floating charge. The same unarticulated assumption is present here. Questions of priority arise only between interests which compete with each other for payment out of the same fund. It would certainly be difficult to defend the logic which made such a question depend upon whether or not there was a floating charge. The significance of the floating charge is, not that it alters priorities for payment out of a single fund, but that it brings a second fund into existence with its own set of priorities.

In my opinion Barleycorn was wrongly decided and should be overruled.

The meaning of "floating charge"

Even before the decision in Barleycorn a possible defect had been revealed in the drafting of the legislation. In In re Griffin Hotel Co Ltd [1941] Ch. 129 Bennett J had construed the expression "floating charge" in the relevant statute to mean a charge which was still floating at the date of the winding up. If the charge holder succeeded in appointing a receiver, or the charge automatically crystallised, before the moment at which the company was put into liquidation, the preferential creditors would have no priority. This was corrected in Australia, where the expression "floating charge" was defined to mean a charge which was "a floating charge at the date of its creation". Once a floating charge, always a floating charge for the purpose of the priority of the preferential debts. The Cork Committee thought that this was probably the test in England also, but considered that it would be prudent to add a definition on the lines of the Australian legislation; "Insolvency Law and Practice" (June 1982) (Cmnd 8558) p 356, para 1578; and this was done in the 1986 Act.

Such a change would not have affected the position in Barleycorn, where no receiver was appointed and the charge was still floating at the moment of the winding up. But it does affect the position in the present case, where the receiver was appointed and the charge crystallised long before the date of the winding up order. But for the change in the definition of "floating charge" the preferential debts (let alone the costs and expenses of the winding up) would not have enjoyed priority over the claims of the charge holder under Section 40 (which is in fact the relevant Section) or Section 175.

Later developments

The decision in Barleycorn caused no difficulty in the great majority of cases before the 1986 Act, because the floating charge normally extended to the whole or substantially the whole of the company's assets and the receiver was usually appointed and the charge crystallised before the winding up. (In the case of a compulsory liquidation the relevant date was the date on which the winding up order was made and not the date on which the winding up petition was presented: see In re Christonette International Ltd. [1982] 1 W.L.R. 1245). This may serve to explain why the decision in Barleycorn seems to have escaped the notice of the Cork Committee.

After the 1986 Act, however, the decision acquired greater significance. Its history since has been one in which judges, bound by the decision, have wrestled with the problem of avoiding the absurdities to which it could lead. In MC Bacon Ltd. [1991] Ch. 127 a liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder. But for the decision in Barleycorn the claim could not have got off the ground. A more absurd and unjust outcome could hardly be imagined. The court was able to avoid it only by finding a way to disallow the costs of the action as recoverable expenses of the liquidation.

The decision below

The Court of Appeal were bound by Barleycorn and were right to apply it. But they went out of their way to endorse it. It is not necessary to deal at length with their reasoning. It is sufficient to say that it is marred by the same misconstruction of the statutory provisions and the same confusion between priority and property as vitiates the decision in Barleycorn itself.

The correct order of priorities in the present case

Since there are two distinct funds which have not been pooled, which belong to different parties, which are actually or potentially administered by different office holders and which are subject to different statutory regimes (and with different definitions of preferential debts) there are two different sets of priorities. They are as follows:

Each fund thus bears its own costs of administration, as one might expect; neither is required to bear the costs of administering the other; and in particular the assets comprised in the floating charge are not required to bear the costs and expenses of the winding up as well as those of the receivership.

Conclusion

I would overrule Barleycorn, allow the appeal, set aside the orders made by the Court of Appeal, and substitute a declaration that none of the costs and expenses of winding up the company are payable out of the assets subject to the floating charge until the whole of the principal and interest charged thereon have been paid.

LORD RODGER OF EARLSFERRY

My Lords,

I have had the privilege of reading in draft the speeches of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Millett. I agree with them and for the reasons which they give I too would allow this appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Millett. I agree with them and for the reasons which they give I too would allow this appeal.

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Buchler & Anor v. Talbot & Anor [2004] UKHL 9 (4 March 2004) URL: http://www.bailii.org/uk/cases/UKHL/2004/9.html Cite as: [2004] 1 All ER 1289, [2004] 2 WLR 582, [2004] 2 AC 298, [2004] BCC 214, [2004] UKHL 9, [2004] 1 BCLC 281