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Aileen McErlean
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Aileen is regarded as a go-to junior for both commercial and insolvency work.

Her commercial practice encompasses domestic and international arbitration as well as litigation. She has considerable experience in a wide range of commercial disputes concerning breach of contract, penalties, civil fraud, breach of fiduciary duty and allegations of bad faith.

Aileen has a wide ranging insolvency practice (both personal and corporate) and is regularly instructed to act in respect of high-value, complex and cross-border disputes.

She acts on behalf of insolvency practitioners, technology multi-nationals, utilities companies, banks, accountants and insurers in complex, high value claims.

A highly regarded team-player, she is a tenacious advocate and pragmatic tactical advisor.

Commercial Litigation

Aileen has experience act in a wide range of commercial disputes arising out the sale of goods and services, security and title based financing and commercial agency and share purchase agreements.

She regularly appears as sole counsel in the High Court (including Commercial Court, Company and Insolvency Court, Business List (ChD) and QBD) in both trials and the full range of interlocutory applications including urgent applications for injunctive relief.

In addition, Aileen is regularly instructed to act in relation to utilities disputes, Aileen has acted on behalf of electricity distributors and suppliers, gas suppliers, landlords and property developers.

Examples of her recent work include:

  • Acting for a multi-national computer retailer in a claim for damages for breach of the Privacy and Electronic Communications (EC Directive) Regulations Act 2003.
  • Advising a multi-national IT product and service provider in respect of potential claims arising out of breach of s.23 of the Consumer Rights Act (duty to repair or replace).
  • Junior Counsel to Nigel Jones QC in this high profile Ofgem Determination concerning the application of Schedule 2ZA of the Electricity Act 1989 to the private distribution network at Heathrow Airport.
  • Junior Counsel to Nigel Jones QC advising a property development company in relation to the creation of a private distribution network at a major development. The matter involved advising on supply and distribution licence exemptions, metering requirements and industry standard agreements.

Commercial Arbitration

Aileen has experience of domestic and international arbitration under LCIA and ICC rules. She accepts instructions in relation to stay of proceeding under s.9, appeals against arbitral awards, challenges to the validity of appointments and challenges to enforcement of arbitral awards under the Arbitration Act 1996.

Examples of her recent work include:

  • Acting (with Nigel Jones QC) for the successful respondent in multi-million pound international arbitration involving allegations of breach of contract and bad faith.
  • Acting in arbitration enforcement proceedings where enforceability challenged on the grounds of invalidity and allegedly obtained by fraud.

Companies, Joint Ventures & Partnerships

Aileen advises companies, shareholders and directors in respect of a range of issues including, breaches of SPA and shareholders agreements, breach of fiduciary duties, breaches of statutory duties under the Companies Act 2006 and unfair prejudice actions.

She is also regularly instructed in respect of applications under the Companies Act 2006 to:

  • register charges out of time;
  • restore a company to the register; or
  • reduce share capital

In addition, Aileen is frequently instructed in relation to partnership disputes and disputes arising out of joint ventures.

Recent work:

  • Acting for company in successful claim against former directors in respect of unlawful distribution of capital.
  • Acting for the successful director in an application for permission to act as a director of a company known by a prohibited name under s.216 of the Insolvency Act 1986 where the application was opposed by the liquidator of Old Co.
  • Acting for director of construction firm in respect of multi-million pound claim for account of profits/equitable damages arising out of allegations of breach of duty and undisclosed conflict of interest.
  • Acting for the respondent shareholders of an international brokerage company in respect of a just and equitable winding up petition.
  • Acting for respondent shareholders of international haulage company in respect of an unfair prejudice petition alleging fraud on the minority shareholder, failure to declare dividends and breach of a shareholder agreement.
  • Acting for former partners in an accountancy firm where, in breach of the deed of dissolution, one partner remained in the business premises but failed to make payments in respect of his use and occupation. Successfully obtained judgment.
  • Advising in respect of application for dissolution of partnership on just and equitable grounds under s.35 of the PA 1890.

 

Civil Fraud & Asset Tracing

Aileen’s regularly acts in cases which include allegations of fraud, deceit, breach of fiduciary duty, knowing receipt and dishonest assistance. She is able to advise on interlocutory steps to preserve assets (e.g. freezing orders, search orders, door-step delivery up) and equitable remedies including tracing and accounts of profits.

Recent examples of her work in this area include:

  • Successfully defending a claim for knowing receipt and dishonest assistance brought by law firm against wife of a former financial director accused of misappropriating client funds.
  • Advising (together with Nigel Jones QC) supplier under CCA agreement in respect of alleged multi-million fraudulent mis-representation claims.
  • Acting on behalf of wife of bankrupt in respect of claim by husband’s trustee in bankruptcy alleging transaction intended to defraud creditors and consequent claims for account of profits. Settled at mediation.

Banking & Finance

Aileen is regularly instructed in relation to mortgage, asset-based lending, factoring, CCA and guarantee disputes.

Examples of recent and on-going cases:

  • Successfully challenging the enforceability of a director’s guarantee where the signature of co-guarantor was forged by a third party.
  • Acting on for lender where signature of co-borrower alleged to be forged. Lender’s position that the loan had been adopted or ratified by the co-borrower in any event. Achieved a favourable settlement at mediation.
  • Advising asset-based lender in respect of guarantees provided by partners in a solicitors firm. Involved issues of fraud, unilateral notice and agency.
  • Acting for Swedish bank in multi-million pound factoring dispute with UK Department Store Chain.

Corporate Insolvency

Aileen’s corporate insolvency practice acting and advising in respect of:

  • contested winding up petitions;
  • applications to rescind winding up orders;
  • restraining presentation of winding up petitions;
  • applications to appoint administrators;
  • applications to continue proceedings against companies in liquidation;
  • claims by office-holders in respect of antecedent transactions and directors’ misfeasance;
  • block transfer order; and
  • applications to remove office holders under s.108 of the IA 1986.

Examples of Aileen’s recent work include:

  • Cash Generator v Fortune [2018]EWHC 674(Ch): Aileen acted for successful third respondent in the first case considering whether failure to comply with the process for creditors to nominate a liquidator under s.100 of the IA 1986 invalidated the subsequent appointment.
  • Acting for the provisional liquidator of Enterprise Insurance Plc (Gibraltar) advising in respect of cross-border recognition of the provisional liquidation and successfully obtaining an order staying an imminent multi-million pound arbitration.
  • Acting for an office-holder in a contested BTO application where, the office-holder having left his firm and joined a new firm, his former firm sought to retain the appointments and make a cross-application for a BTO in favour of an IP employed by them.
  • Advising a Swedish lender in respect of claims against a UK based subsidiary (in administration) and the effect on extant Swedish proceedings. The case involved an analysis of the extraterritorial scope of the moratorium, the EU Insolvency Regs and the Rome II Regs.

Aileen has made an in-depth study of the Insolvency (England & Wales) Rules 2016 and the likely problems that will arise under the New Rules. She was part of the team that presented the well-attended and highly acclaimed half-day Seminar on the New Rules on 14th March 2017, which was addressed by the Chief Bankruptcy Registrar, Stephen Baister. A Handout based on the material used at the Seminar is available upon request.

Personal Insolvency

Aileen has considerable experience acting for both individuals (creditors and debtors) and officeholders in relation to all aspects of bankruptcy proceedings and IVAs. She frequently appears applications to set aside statutory demands, contested annulment applications and applications by officeholders to recover the assets in the bankruptcy estate.

 

  • Acting for the wife of a bankrupt (against a leading silk) in a high value claim by the Trustee in Bankruptcy against matrimonial assets in multiply jurisdictions subject a trust. The case raised important issues in relation to the scope of the power an office holder to revoke a trust.
  • Cooke v Dunbar Assets Plc([2016] B.P.I.R 567): Appeal from a bankruptcy order on the basis that an offer to secure and compound had been unreasonably refused.
  • Cooke v Dunbar Assets Plc ([2016] B.P.I.R 1339): important cases concerning whether the costs of an appeal are a cost and expense of the bankruptcy or a post-bankruptcy debt.

Construction Insolvency

Aileen has a particular interest in construction insolvency and is routinely instructed on behalf of employers, contractors, sub-contractors and lenders to advise where there is insolvency in part of the construction chain. She also has considerable expertise in relation to construction insolvency and the interaction between the HGCRA 1986 and the Insolvency Act 1986.

Examples of her recent cases include:

  • Acting for the main contractor in appeal against liquidator’s refusal to admit multi-million proof of debt (ongoing).
  • Re A Company(00211 of 2016) application to restrain presentation of a petition based on HGCRA debts, where the company alleged a genuine and substantial cross-claim and the debtor sought to rely on an adjudicator’s award in its favour in respect of the cross-claim. Aileen appeared for the company and was successful in obtaining an injunction restraining presentation of the petition.

Directors’ Disqualification

Aileen has considerable experience advising directors in respect of proceedings under the CDDA including applications for permission to continue to act where a director has been disqualified or given an undertaking.

Examples of Aileen’s recent cases:

  • Acting for the successful applicant seeking permission to continue to act as a director notwithstanding having only recently given an 11 year directors disqualification undertaking: Yarde v the Official Receiver No.6710 of 2015.

Financial Professionals, Insolvency Professionals, Directors & Officers

Aileen is frequently instructed for and against professionals and their insurers in relation to all kinds of professional liability disputes including those relating to accountants, financial advisors and insolvency professionals.

Recent Cases:

  • Advising in respect of claim against insolvency practitioner for negligently failing to advise on consequences of PVA.
  • Instructed on behalf of a firm of insurance claims handlers in a professional negligence and breach of contract action where it was alleged that the firm had incorrectly concluded that the Insurer’s policy did not respond. Succeeded in having the claim struck out on the morning of trial.

Professional associations

  • Associate Member of R3
  • COMBAR
  • London Common Law and Commercial Law Bar Association
  • Member of Chancery Bar Association
  • Young Fraud Lawyers Association

Publications

  • Contributing author to Atkins Corporate Insolvency Forms.
  • Contributing author to Insurance Broking Law and Practice (ed CMS Cameron McKenna).

Qualifications

  • Bar Vocational Course: Outstanding
  • Law LLB (Bristol University): 2:1
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