12 July 2020
In confirming the proposed scheme, which had been objected to by certain creditors, Quinn J. noted that the decision as to which investment proposal to accept was a commercial judgment for the Examiner. The Court found that the concerns expressed by the unsecured creditors as to the conduct of the investment process carried out by the Examiner, which were advanced principally by an unsecured creditor who was also a disappointed potential investor, did not evidence any failure by the Examiner and did not amount to a deviation from the proper exercise of his commercial judgment in selecting an investor.
The Court noted that the Examiner was able to demonstrate that the Company had a reasonable prospect of survival as a going concern if the proposals were confirmed and accordingly confirmed the proposed scheme.
This recent decision is instructive in that while it is unusual for an Interim Examiner to enter into a binding investment agreement before the application confirming his/her appointment is determined, it is clearly not beyond his/her remit to do so and will be permitted where there are compelling reasons to do so as arose here.