[2025] EWHC 2887 (Ch)

I need to be satisfied that the Company is, indeed, a “company” for the purposes of paragraph 111(1A) to Schedule B1. Since the Company is not incorporated in the UK or an EEA state, that reduces to a consideration of whether its COMI is in the UK.

The concept of COMI is defined in Regulation (EU) 2015/848 as it applies to the UK post-Brexit (the Recast Insolvency Regulation). That definition provides:

“The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved from the United Kingdom to a Member State or to the United Kingdom from a Member State within the 3-month period prior to the request for the opening of insolvency proceedings”.

Recital (28) to (30) to the Recast Insolvency Regulation emphasises the importance of creditors’ perceptions:

“(28)

When determining whether the centre of the debtor’s main interests is ascertainable by third parties, special consideration should be given to the creditors and to their perception as to where a debtor conducts the administration of its interests. This may require, in the event of a shift of centre of main interests, informing creditors of the new location from which the debtor is carrying out its activities in due course, for example by drawing attention to the change of address in commercial correspondence, or by making the new location public through other appropriate means.

(29)

This Regulation should contain a number of safeguards aimed at preventing fraudulent or abusive forum shopping.

(30)

Accordingly, the presumptions that the registered office, the principal place of business and the habitual residence are the centre of main interests should be rebuttable, and the relevant court of a Member State should carefully assess whether the centre of the debtor’s main interests is genuinely located in that Member State. In the case of a company, it should be possible to rebut this presumption where the company’s central administration is located in a Member State other than that of its registered office, and where a comprehensive assessment of all the relevant factors establishes, in a manner that is ascertainable by third parties, that the company’s actual centre of management and supervision and of the management of its interests is located in that other Member State …” (emphasis added)

The Company is incorporated in Jersey and has its registered office in Jersey. Therefore there is a presumption that its COMI is in Jersey.

In this case, I see from Mr Reis e Sousa’s evidence that the Company has its headquarters office in the UK. Negotiations and communications with creditors have generally taken place in the UK by which I mean that when physical meetings have taken place to discuss restructuring proposals, those have tended to take place in in London. Senior management of the Company, including Mr Reis e Sousa himself, is based in the UK. The Company has sent emails to all creditors telling them that with effect from 4 September 2025, all dealings with the Company in relation to its debts will take place in the UK. Overall, the evidence shows that the vast majority of work carried out in connection with the restructuring of the Company over the past two years has taken place, to the knowledge of creditors, in the UK. These are all powerful indications of a UK COMI.

I do acknowledge that the articles of association of the Company contain a restriction on board meetings taking place in the UK, and that is a potential contraindication to the factors set out above. However, I agree that it is an indication of relatively slender weight in this case. In the first place, the creditors of the Company will not necessarily know where it holds its board meetings. Secondly, and more fundamentally, the way in which the Company chooses to pass board resolutions is not the focus of the test of COMI set out in the Recast Regulations. The question is how and where the Company deals with creditors in relation to their debt to the knowledge of the creditors themselves. I am quite satisfied that that place is in the UK.

I consider that the presumption is rebutted and the Company’s COMI is in the UK.