Don’t Delay – Use it or Lose it: Early Referrals to Manolete

When Best to Refer a Claim to Manolete?

As specialists in insolvency litigation finance, our 18 strong in-house legal team at Manolete supports the invaluable work done by Insolvency Practitioners and their chosen solicitors in the process of identifying, assessing and financing claims which can potentially recover significant value for insolvent estates.

With our financial support, we de-risk the vital work done by IPs and their legal teams. We work in a unique three-way partnership: the IP, external solicitors, supported by Manolete financial backing to bring about a successful result.

However, delaying the referral of a claim to us can create difficulties in achieving a successful recovery. It is important to always keep a wary eye on your window of opportunity to successfully recover: it is shrinking. The longer each claim goes on, the narrower the chance of bringing a successful recovery.

The Benefits of Early Referral

Referring a case to Manolete at the earliest opportunity provides numerous advantages for office holders:

• Timely Recovery: Early referral ensures we can act quickly to help achieve a successful recovery, thereby working towards preventing dissipation or disposal of assets held by our target defendant. With 16 years’ experience of insolvency litigation across over 1,300 financed UK insolvency claims, Manolete has an average time of completing those cases of just 12 months. Time is money and time is of the essence to secure the optimal return for the Insolvent Estate. There is no cost to submit an inquiry.
• Stronger Evidence: Prompt action and securing full financing to support claims then allows time and resources to gather and preserve crucial evidence before it becomes difficult to obtain or memories fade.
• Avoiding Legal Issues: Timely referrals help mitigate the risk of legal defences being raised such as laches (see below), where a defendant may successfully argue that an unreasonable period of delay has prejudiced their case.

How Delay Can Create Problems

Delay in referring a claim can lead to several issues:

• Laches: This legal doctrine means "delay, inexcusable, and prejudicial." It allows defendants to argue that the claimant’s delay has harmed their ability to defend themselves, sometimes resulting in the claim being dismissed.
• Evidential Challenges: Over time, crucial evidence can become harder to obtain and witnesses' memories may fade, weakening the claim.
• Judicial Discretion: In insolvency claims, judges often have discretionary power. Delay is a factor they may consider against the claimant, potentially reducing the chances of a favourable outcome.

Conclusion

Given the potential difficulties arising from delays, we strongly encourage Insolvency Practitioners and their chosen external legal advisers to refer claims to us as early as possible. Early involvement allows us to:

• work with you to ensure cases are thoroughly investigated, ensuring all relevant evidence is gathered and preserved.
• pursue claims more effectively, increasing the likelihood of successful recovery. An example is a commitment we have recently made to procure an expert’s report where the fees for the report are in the region of £75,000.

Early referral maximises the chances of recovering value for the insolvent estate, benefiting all stakeholders involved. Our team of experts is always ready to discuss potential claims and provide litigation finance support to help maximise returns through our three-way partnership.

Andrew Cawkwell
Head of Business Development and Associate Director for the North East

Q&A

Kelly Jordan
Associate Director for the North East

What is your legal background?
I qualified as a solicitor in 2006, spending the first couple of years as a corporate lawyer at a large regional law firm in Newcastle. I began working in the same firm’s corporate recovery and insolvency team in late 2008 and have specialised in all aspects of restructuring and insolvency ever since. Before joining Manolete, I was a Partner at a prominent regional firm as well as a top 20 firm. I am a member of R3 and am currently the Chair of the North East Regional Committee.

How long have you been at Manolete?
I joined the North East team at Manolete as an Associate Director in September 2022, working predominantly within the business development function.

What have been your main impressions?
The biggest thing for me has been seeing the ‘Manolete effect’ at play. It never ceases to impress me how quickly the dynamic changes between the parties to a claim when Manolete becomes involved and how quickly the cases are often resolved. The combination of setting a clear intention that Manolete can and will pursue the matter to the fullest extent, the swift decision-making process of Manolete’s investment committee and the collaborative way in which the lawyers in the team work with the external legal team and the office holder is very powerful to see in action.

What are the other highlights?
Being in a business development role has allowed me to get to know so many other insolvency professionals across the regions. It’s been especially good to spend time with and develop relationships with other insolvency lawyers who would otherwise have been competitors in private practice. I’ve really enjoyed getting out meeting people whilst promoting the Manolete brand and business model. It’s great to be representing what is now a very well known and trusted brand within the insolvency community. Another highlight for me is the quarterly in person team meeting. It provides a great opportunity to spend time with the rest of the team, hear what is happening in the business, share ideas and listen to high quality external speakers. It brings everyone together which is great given how dispersed everyone is across the country. The social side is always good fun too!

What do you do outside of work?
I love being outdoors walking with my dog, Benson the black Labrador. This goes at least some way to counteracting my love of food – both cooking and eating it!

Stephen Baister writes
Defining your terms

“Définissez les termes, vous dis-je, ou jamais nous ne nous entendrons.” Voltaire’s injunction to define your terms before you start a discussion is well known. A pared down version is sometimes invoked by politicians and teachers in the simpler request or command, “Define your terms.”

Defining terms is often important. Certainly it is an important aspect of legal drafting. It is generally associated with legislation and contracts, but it can be equally important in other contexts, notably court orders. Definition and interpretation clauses are often found at the beginning of a legal document, a reflection of their importance (though some drafters prefer to relegate them to an appendix, where they are just as effective). Their purpose is to ensure the parties know exactly what they are contracting about and to minimise (even obviate) disputes that may later lead to argument about how a contractual provision is to be construed. Sometimes a definition can go wrong, as it almost did in GB Building Solutions Limited (GB) v SFS Fire Services Limited (t/a Central Fire Protection) in which different meanings were attributed to the same phrase depending on whether it was rendered with initial capital letters or entirely in lower case.

Judges too often need to define parties, and many other things, when they give a judgment. But sometimes, I think, they go too far. Judgments are nowadays full of definitions that are otiose to the point of being comical: comical because they show an underlying ignorance of how plain language works. Let me give you an, admittedly satirical, example from a recent judgment of Cocklecarrot J.

“I have before me an application (‘the application’) by Cedric William Jones (‘Mr Jones’) to strike out parts of the particulars of claim (‘the particulars of claim’) of Albert Frederick Smith (‘Mr Smith’) in proceedings brought by Mr Smith against Mr Jones for breach of a contract in writing for services dated 20 February 2022 (‘the contract’).”

Let’s pause there for a moment to ask whether all these (‘…’) are necessary. Plainly if the judgment is going to refer to a Mr Smith who is not Albert Frederick (because another Mr Smith has a walk-on part) or a Mr Jones who needs to be distinguished from Cedric William it may be necessary to make a distinction, although often context will do the job; and if there is more than one application involving several contracts etc, the answer is “Yes”. But if there is only one Jones, one Smith, one application, one contract - you get the idea - the answer is “No”. Why? Because the title “Mr” + name, in the case of the humans involved, and the use of the definite article with “application” and “contract” will, just by reason of normal English usage define those terms: because that’s what the definite article does - it defines! As for “particulars of claim,” the same applies, but there should only be one set anyhow.

And yet, the modern judge persists in defining people and things when they don’t need to because it’s perfectly obvious who or what they are. Harmless enough, you may think, but I’m not so sure. Defining your terms when you don’t need to can be ponderous, pompous and every bit as pretentious as the unnecessary use of Latin or outmoded speech. It also betrays an ignorance of how language works, and language is, among many things, an important legal tool.

Voltaire would not be impressed. I’m not, and you shouldn’t be either. Could somebody please ask our judges to stop and think and, in appropriate cases, not define their terms. In the meantime you might want to join me in chuckling at judgments that over-define.

Lawyer's Regional Network

Rachel Grant to Retire

Manolete Partners announces the retirement of Rachel Grant, our Associate Director for Scotland from the end of June 2024.

Rachel has over 30 years of experience in insolvency law and is one of the leading insolvency lawyers in the Scotland. Rachel has been inducted into the Legal 500 Hall of Fame and held many senior positions such as chairing the R3 Scottish Technical Committee for over ten years.

She joined Manolete in 2019 and her extensive experience has been of huge value to our regional network of lawyers. We are sorry to see Rachel leave Manolete and wish her all the best in retirement where she can focus on the many things she enjoys doing.

“Although I am feeling a bit sad to retire and say a fond farewell to some wonderful respected colleagues at Manolete, I can certainly look back on some terrific highlights and great achievements,” said Rachel.

For any queries regarding matters in Scotland, please contact Mena Halton (mena@manolete-partners.com) or Andrew Murphy (AMurphy@manolete-partners.com).”

Case study
The Manolete Model in Action

R3 Contentious Insolvency and Creditors Forum 2024