East Riding of Yorkshire Council as Administrating Authority of the East Riding Pension Fund v KMG [2024] EWHC 2845 (Ch)

Section 221(1) of the Insolvency Act 1986 provides that “any unregistered company may be wound up under this Act”.  By section 220, ““unregistered company” includes any association and any company, with the exception of a company registered under the Companies Act 2006 in any part of the United Kingdom.”  Does the use of the word “includes” mean that entities other than associations and companies can be wound up under section 221(1)?  

This novel question arose on appeal in East Riding of Yorkshire Council as Administrating Authority of the East Riding Pension Fund v KMG [2024] EWHC 2845 (Ch), where the appellant had presented a winding-up petition in respect of a sub-fund of an investment company incorporated in Luxembourg.  In a judgment handed down this morning, Mr Justice Richard Smith decided that section 220 is not capable of encompassing entities that are neither companies nor associations.  Rejecting the appellant’s contention that it would be anomalous if no effective remedy were available in England against foreign cellular structures offering investments in UK assets to UK investors, he held that the sub-fund was not an entity that Parliament reasonably intended to be wound up as an unregistered company.

Daniel Lightman KC and Oliver Caplan (18 St John Street Chambers), instructed by Ben Gold, Caroline Shiffner and Sarah Herniman (RPC), acted on behalf of the successful respondent.