[2025] EWHC 2887 (Ch)

I apply the definition in section 123 of the Insolvency Act 1986 and the guidance of the Supreme Court in BNY Corporate Trustees Services Ltd v Eurosail-UK 2007-3BL plc [2013] UKSC 28. I consider debts falling due from time to time and the reasonably near future.

Mr Reis e Sousa’s witness statement shows that there are clear and established defaults that have already taken place. The Company has not provided US$ 53 million of cash collateral that ABN Amro has demanded and which is contractually due. Some US$ 230 million of debt falls due for repayment on 3 November 2025 and Mr Reis e Sousa’s evidence is that the Company lacks sufficient liquid assets to pay the amount due.

Condition 1, in my judgment, is quite clearly satisfied.