The Mishcon de Reya Insolvency Litigation Conference 2026 involved a fast-paced afternoon of detailed discussion on the pressures, risks and complexities currently shaping the field of insolvency litigation.
The event provided a rare opportunity to hear directly from Chief Insolvency and Companies Court Judge Briggs and Paul Bannister, the Head of Policy at the Insolvency Service, as well as from specialists at Mishcon.
Across the sessions, several clear themes emerged: the sheer volume of work now passing through the courts, the rising scrutiny on insolvency practitioners, the growing influence of AI on litigation conduct, and the shift in regulatory and policy priorities as the government moves to reshape the UK’s corporate enforcement landscape.
Behind the bench: a conversation with Chief ICC Judge Briggs
The conference opened with a conversation between Chief Insolvency and Companies Court Judge Briggs and Managing Associate Jessica Williams, offering a detailed and candid insight into what the Insolvency and Companies Court is currently facing.
Judge Briggs emphasised the unparalleled level of activity in the Insolvency & Companies Courts, explaining that in the previous quarter alone the ICC had received around 7,000 applications and petitions, covering everything from urgent injunctions and contested administrations, to schemes of arrangement and winding-up petitions.
One of the key takeaways from the session for Insolvency Practitioners was that thorough contemporaneous recordkeeping remains the strongest protection against conduct challenges, especially when making rapid commercial decisions under pressure or when selling assets in difficult circumstances.
We also discussed the use of AI in court, particularly with regards to the growing trend of litigants in person relying on AI to generate correspondence and court applications. This can be problematic for the court, particularly where the AI tool generates nonsense information and cites cases which do not exist. It is of assistance to the court for insolvency practitioners (and all court users) to ensure that they produce concise, intelligible materials with clear chronologies, to ensure that the court has the best opportunity to understand the case being presented to them.
Policy and strategy: the Insolvency Service’s direction of travel
Paul Bannister is the Head of Policy at the Insolvency Service. He discussed their strategy for 2026–2031. He explained that the Service is undergoing a significant shift in its role, expanding well beyond traditional insolvency enforcement into economic crime, corporate governance and wider regulatory compliance. This is driven by an increase in expectations from government, Parliament and the public.
Paul noted that corporate insolvencies remain around 40% higher than pre-pandemic levels and seems to have stabilised at this elevated point. He expects compulsory liquidations to rise sharply as HMRC substantially increases petitioning activity, assisted by new legal resource. Director disqualification activity remains intense, with bounce back loan misconduct making up the bulk of enforcement action in recent years, although many matters now resolve before formal action because directors “start to pay up” once they see others being pursued.
Paul highlighted the impact of the Economic Crime and Corporate Transparency Act, which he described as a “game‑changer” for Companies House and for corporate enforcement generally. Although only partially implemented so far, the Act’s reforms on identity verification, registered addresses and data accuracy will require substantial investigative work as they take effect.
Finally, Paul acknowledged that the Service recognises the personal risk and difficult judgements IPs must make, often under considerable pressure. He confirmed that although enforcement activity will increase, there is no policy intention for the Insolvency Service to take over cases that should be handled by regulated professionals, particularly where realisations exist. Instead, the objective is to ensure the system functions effectively, deters misconduct and supports economic growth.
Case law
Members of the Mishcon team presented a focused review of recent Supreme Court decisions with particular significance to insolvency practitioners.
The first was Bilta v TFES, which considered whether fraudulent trading liability under section 213 Insolvency Act can extend to third‑party service providers. The Supreme Court confirmed that it can: the provision is not limited to directors or insiders, and what matters is whether the party knowingly participated in the fraudulent business. The Court also held that restoration of a company does not pause the limitation period for such claims. Further, that claimants must prove the fraud could not reasonably have been discovered earlier, including during periods when the company was dissolved.
The second was Mitchell v Al Jaber, in which the Supreme Court considered whether a director whose statutory powers cease on liquidation can nevertheless owe fiduciary duties for post-liquidation conduct. The Court confirmed that he could: by purporting to exercise directors’ powers and signing documents, he assumed fiduciary responsibilities, even if he had no authority to act. The decision also clarified that equitable compensation should be assessed at the date that best reflects the justice of the case and that a defaulting fiduciary bears the burden of proving that any alleged intervening event(s) should be taken into account.
The third was Rukhadze v Recovery Partners GP Ltd. This case reaffirmed the strictness of fiduciary accountability. The Supreme Court rejected the introduction of a “but for” causation test in account of profits claims. A fiduciary who profits from their position without the informed consent of their principal must disgorge all profits to that principal, even if they could have earned those profits without breaching their duty. The Court described fiduciary loyalty as a foundational principle of commercial integrity, and confirmed that ignorance of the law is no defence.
IP conduct and judicial scrutiny
The final session, led by partners David and Raza and Of Counsel Nick, examined a noticeable upward trend in challenges to IP conduct. They drew attention to several factors which might be contributing to this increase, beyond the increasingly complex economic situation, including: greater availability of litigation funding; the growing use by IPs of assignments or recoveries based litigation arrangements; more aggressive stakeholder behaviour; and the accessibility of AI tools for litigants who might otherwise have lacked resources to mount challenges.
The session focused on three categories of risk: conflicts of interest, use (and misuse) of statutory powers, and IP remuneration and liability.
On conflicts, the panel discussed prior involvement conflicts, personal interest conflicts, and conflicts arising from their relationship with their appointing party. Recent cases demonstrate that courts are increasingly being asked to remove IPs on conflict grounds, and examined some of the recent decisions in this area. The panel emphasised the importance of identifying conflicts early, disclosing them proactively and using conflict administrators only in circumstances where the original officeholder retains a legitimate functional role.
On statutory powers, the panel noted that courts are now showing less tolerance for applications under sections 234–236 that are overly broad or that attempt to circumvent substantive dispute processes. Recent decisions have criticised applications seeking disclosure of “everything forever”, and confirmed that information obtained by compulsion under section 236 is subject to confidentiality controls, meaning it should not be shared with third parties without court permission.
On remuneration, the panel discussed recent cases in which courts have criticised opaque financial information provided in support of IP fee claims, and refused to make payment orders where time narratives cannot be matched to activities. They stressed that clear and coherent presentation of time entries, personnel involved and justification for the work done is now essential.
Across all areas, the message was consistent: stakeholders are increasingly challenging IP conduct, and the courts will continue to scrutinise, IP conduct with increasing rigour. Good contemporaneous recordkeeping, clear reasoning and transparent decision making remain the best protection against such challenges.
Join us next time
This year’s conference highlighted a sector navigating unprecedented complexity. The courts are dealing with overwhelming volumes of work; policymakers are reshaping the enforcement landscape; practitioners are facing increasing scrutiny; and new technology is changing how litigation unfolds. What remained clear throughout the day is that insolvency practitioners, lawyers and regulators must continue to adapt, collaborate and innovate to meet these challenges.
We look forward to continuing these conversations at our next Insolvency events:
- Register here for our networking reception on 20 April ahead of the 2026 INSOL conference.
- Register your interest for our event on 7 October designed specifically for aspiring leaders in the insolvency profession.