1 Apr, 2021
Mr Justice Snowden has handed down judgment following the convening hearing in what are probably the most contentious schemes under Part 26A of the Companies Act 2006 to date.
The interconnected Restructuring Plans were proposed by three Plan Companies, namely Virgin Active Holdings Limited, Virgin Active Limited, and Virgin Active Health Clubs Limited. The evidence of the Plan Companies suggested that, if the Plans were not to be implemented during the week commencing 10 May 2021, the companies would be forced into administration.
Notice of the convening hearing and the Practice Statement Letter had been circulated only on 10 March 2021. The Explanatory Statement and other documents had variously not been provided to Plan Creditors, or had been circulated to them only the day before the convening hearing was due to commence (on 25 March 2021).
At the risk of oversimplification, the order sought by the Plan Companies was that the court should convene a total of 21 meetings, to enable the classes of creditors to vote on the Plans. The creditors fell into three broad categories:
Some creditors were excluded from the Plan altogether, because the Plan Companies intended to pay their debts in full. They included trade creditors and employees.
It was against that background that complaints were raised by four distinct groups. The objections raised by the Plan Creditors traversed a significant range of issues, the key points of which are as follows:
While noting the significant time pressures that all parties were under, and the lack of notice and information that had been provided to the Plan Creditors, Mr Justice Snowden made the convening order. The order has however been made without prejudice to points that may yet be raised. The sanction hearing has been listed for 3 or 4 days (assuming the Plans are approved by the requisite majority).
If the points canvassed at the convening hearing are any indication of what is to come, any decision arising from the sanction hearing is likely be the seminal case on many issues, including the court’s use of the Chapter 11-inspired ‘cross class cram down’ procedure, the methodology for measuring the ‘relevant alternative’, and the methods and formulation of class composition.
The legal consequences are likely to be significant. The commercial ramifications of the Plans being sanctioned are immense.
Simon Passfield and Samuel Parsons, instructed by Browne Jacobson LLP, acted for Pure Gym Limited, who sought clarification as to the intended impact of the Restructuring Plans on their rights as sub-tenants in light of the inconsistencies and ambiguities in the Practice Statement Letter. As a result of their representations, the Plan Companies agreed to make significant modifications to the Plans.
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