The High Court confirmed examinership schemes for Tivway Limited, John J. Fleming Construction Company and J.J. Fleming Holdings, finding that ACC Bank plc had not been unfairly prejudiced. It added a clause to the Tivway scheme allowing local authorities and the Railway Procurement Agency to bring future proceedings over unpaid development levies if development proceeds.
Mr Justice Brian J. McGovern delivered the judgment on 13 November 2009. The applications sought court confirmation of schemes under section 24 of the Companies (Amendment) Act 1990. ACC opposed confirmation, arguing that the schemes unfairly prejudiced it, had an improper purpose and offered no reasonable prospect of the companies’ survival.
ACC disputed its classification as a contingent creditor of Construction and Holdings, arguing it should be treated as unsecured. It also argued that its floating charge over Tivway assets should rank ahead of Anglo’s fixed charge. The judge rejected that priority argument and held that the examiner had used a rational and fair method to classify creditors, including ACC.
The schemes involved selling Construction’s third-party contracting business and other group trading assets to Dunban Limited, transferring most Construction employees to the buyer, and providing working capital for the transferred trades. The judgment said 137 jobs were expected to be preserved. Construction’s legacy development business was to continue with bank support. The schemes also created residual debt funds and contemplated a lengthy period to realise property and inter-company interests.
The court found a reasonable prospect that the restructured companies, or parts of their undertakings, would survive. It concluded that ACC had not been unfairly prejudiced and approved the schemes. The judgment records that the examiner proposed an additional Tivway clause after the Railway Procurement Agency raised concerns about a provision affecting proceedings over levies. The court confirmed the schemes with that amendment; the judgment does not set out any separate order beyond confirmation and the stated change.