[1999] EWCA Civ 1668
England and Wales
Appeal from – Demite Ltd v Protec Health Ltd ChD 1998
A sale by a receiver potentially fell within the scope of section 320. The receivers were the agents of the company and their act was the company’s act. The section expressly excluded from its scoe an arrangement made in the course of a winding up . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.146583
The court does not have power to order the payment of a liquidator’s costs which had not been properly incurred. The costs of unsuccessful litigation were not recoverable in priority to a secured creditor in priority to the charge. As to rule 7.47(1) of the Rules: ‘But, since the point has been raised and may be of importance in other contexts, it is appropriate that I indicate that I can see no basis why the words used in rule 7.47(1) should not be given the very wide effect which, as a matter of language, the meaning which they naturally bear would indicate that the rule-making body intended. The rule is in terms which are indistinguishable from the parallel provision applicable in bankruptcy: see section 375(1) of the Insolvency Act 1986; and, in that context, there is no reason to doubt that Parliament intended to preserve the unlimited jurisdiction to conduct a rehearing which, as Sir James Bacon C.J. observed in Ex parte Keighley; In re Wike (1874) L.R. 9 Ch.App. 668n., was ‘of very considerable antiquity’ and which had been enshrined in successive Bankruptcy Acts: see section 71 of the Act of 1869 (32 and 33 Vict. c. 71), section 104(1) of the Act of 1883 (46 and 47 Vict. c. 52) and section 108(1) of the Act of 1914. As Hoffmann J. pointed out in In re Calmex Ltd. [1989] 1 All E.R. 485, 486, the power is expressed in completely general terms. But, although I would hold that, as a matter of jurisdiction, the power to review conferred by rule 7.47(1) is unfettered, it is, of course, a power which is to be exercised judicially. It would, in my view, be inappropriate – save in the most exceptional circumstances – for a judge to exercise that power in order to substitute his own decision for that of another judge of co-ordinate jurisdiction reached on the same material after a full consideration of the arguments. The power to review is not to be used in order to hear an appeal against a judge of co-ordinate jurisdiction. The exercise of the power should be confined, as a matter of discretion, to cases in which there has been some change in circumstances (which may, perhaps, include the consideration of material which was not previously before the court) since the original order was made: see the observations of Millett J. in In re A Debtor (No. 32-SD-1991) [1993] 1 W.L.R. 314, 318-319.’
Chadwick LJ
Times 18-Jun-1999, [1999] EWCA Civ 1586
England and Wales
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.83801
Unpaid community charge constituted a debt for administration order purposes..
Ind Summary 30-May-1995
County Courts Act 1984 112(1)(b) 114
England and Wales
Updated: 21 January 2023; Ref: scu.85032
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; the trustee had no choice in the matter. ‘the debtor’s interest in the property was divested on the commission of the act of bankruptcy, in which event the joint tenancy was severed.’ ‘It was a peculiarity of the former law of bankruptcy that the effect of an act of bankruptcy on a joint tenancy depended on whether it was followed by adjudication or not. But it did not depend on whether it was the solvent or the insolvent joint tenant who died before adjudication.’
Ind Summary 22-May-1995, [1995] 3 All ER 171, [1995] 3 WLR 367
England and Wales
Cited – Cooper v Chitty 1756
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December . .
Appeal from – Re Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .
Cited – Fox v Hanbury 1776
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission . .
Cited – Fraser v Kershaw 1856
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other. . .
Disapproved – Ex parte Smith 1800
Two partners, Strickland and Richardson, held property as joint tenants at law. Richardson committed an act of bankruptcy by absenting himself, and a commission was issued against him. The commissioners then declared Richardson bankrupt and executed . .
Cited – Smith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Cited – Doe d Lloyd v Powell 1826
A lessee executed a deed by which he conveyed all his real and personal property to trustees for the benefit of his creditors. This was an act of bankruptcy. A commission was issued against him and he was declared bankrupt. He then sought to forfeit . .
Cited – Morgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
Cited – Re Bonham ex parte the Postmaster-General 1879
A bankrupt presented his own petition. It was contended that the relation back of the title of the assignees in bankruptcy to the anterior act of bankruptcy did not affect the rights of the Crown was altered by the 1869 Act
Held: The Act made . .
Cited – Titterton v Cooper CA 1882
The bankrupt was a lessee. His trustee did not disclaim the lease, and the question was whether he was personally liable for the rent which had fallen due between the date of his appointment and the date on which he elected not to disclaim.
Cited – Re Lewis ex parte Helder CA 26-Jul-1883
An agent, in obedience to a previous instruction of his principal, paid away money of the principal which was in his hands knowing, before he made the payment, that when completed it would constitute an act of bankruptcy on the part of his . .
Cited – Re Chapman ex parte Edwards CA 4-Aug-1884
The solicitor for the petitioning creditor was liable to account to the trustee for money which he had received from the debtor after he (necessarily) had notice of the act of bankruptcy on which the petition was founded and which he had paid to his . .
Cited – Re Badham ex parte Palmer 1893
The debtor made payments to creditors after the bankruptcy petition had been presented, and after the act of bankruptcy. After the debtor had been adjudicated bankrupt the trustee in bankruptcy sought to recover the payments as fraudulent . .
Cited – Re Pollitt CA 1893
The debtor had put his solicitor in funds to meet future costs. The solicitor then prepared a deed of assignment for the benefit of the creditors which the debtor executed. The debtor was afterwards adjudicated bankrupt, the act of bankruptcy being . .
Cited – Re Hirth CA 1899
The debtor, already in financial difficulties, transferred his business to a limited company which he had formed for the purpose. Within three months he committed an act of bankruptcy by failing to comply with a bankruptcy notice. He was adjudicated . .
Cited – Montefiore v Guedalla 1901
The bankrupt had a protected life interest in a trust fund under the will of his late father which was defeasible inter alia if he should do or omit to do or should suffer to be done any act whereby the income of the trust fund if payable to himself . .
Cited – Stein v Pope CA 1902
A lessee assigned the lease by an assignment which constituted an act of bankruptcy. He was subsequently adjudicated bankrupt and his trustee disclaimed the lease. During the interval between the assignment of the lease and the date of the . .
Cited – Re Gunsbourg CA 1920
The debtor transferred his assets to a company formed by him. He later committed an act of bankruptcy on which he was adjudicated bankrupt. The company had sold some of the assets to a bona fide purchaser without notice of the act of bankruptcy. The . .
Cited – Ponsford, Baker and Co v Union of London and Smith’s Bank CA 1906
Was a debtor who had committed an act of bankruptcy but who had not yet been adjudicated bankrupt free to require his secured creditor, who had notice of it, to hand over his securities on payment of the amount due thereon?
Held: He could not. . .
Cited – Re Gershon and Levy 1915
An order was made by consent in a partnership action to tax the costs of the parties and the receiver was ordered to pay the costs when taxed out to the solicitors for the parties out of the partnership assets. When the order was made all parties . .
Cited – Re Ashwell ex parte Salaman Chd 1912
After the presentation of a bankruptcy petition against him, the debtor obtained an adjournment of the petition by paying the petitioning creditors money which he falsely represented to be that of a third party. The debtor was afterwards adjudicated . .
Cited – In Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .
Appealed to – Re Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.85752
A receiver’s remuneration may be set by the court on either the standard or indemnity basis.
Times 24-May-1995
England and Wales
Updated: 21 January 2023; Ref: scu.77749
A provision in a tenancy agreement that the tenancy would cease upon the bankruptcy of the tenant, continued and became part of the terms of a statutory tenancy following the contractual one. The provision was not inconsistent with the idea of the statutory tenancy, and the term was implied into the statutory tenancy.
Stuart-Smith and Laws L.JJ. and Jonathan Parker J.)
Times 01-Jun-1999, Gazette 03-Jun-1999, Gazette 09-Jun-1999, [1999] EWCA Civ 1470, [1999] 1 WLR 1689, [1999] L and TR 481
England and Wales
Appeal from – Cadogan Estates Limited v McMahon HL 26-Oct-2000
When a tenancy was terminated and was followed by a statutory tenancy, a term in the contractual tenancy that the tenancy should be forfeit on the tenant’s bankruptcy was continued in and inherited by the statutory tenancy. Though perhaps in . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.78822
The debtor had presented his own petition and a receiving order was made upon it. An arrangement was later made under which the debtor’s father paid the creditors 10s. in the pound and the creditors released their debts. The creditors withdrew their proofs of debt, and the debtor applied for the receiving order to be rescinded. The Official Receiver did not make any objection to the conduct of the debtor or ask for a public examination, and the registrar rescinded the receiving order. The Official Receiver appealed to the CA contending that the registrar had no jurisdiction to rescind a receiving order merely on the ground that a private arrangement had been made with the creditors; alternatively, if there was jurisdiction, it was wrongly exercised.
Held: None of the members of the Court doubted the existence of the jurisdiction or that Section 104 gave the bankruptcy court an absolute discretion to rescind or vary any of its orders. By a majority the Court held that a receiving order may properly be rescinded where the debtor has afterwards come to a private arrangement with his creditors, but emphasised that the court will act only with great caution and under special circumstances which make it clear that the arrangement is for the benefit of the creditors and where the debtor has not been guilty of any misconduct in connection with his insolvency.
[1897] 1 QB 241
England and Wales
Distinguished – In Re A Debtor No 12 of 1970 CA 1970
A bankruptcy petition was presented against the debtor and a receiving order was made upon it. He afterwards assured his creditors that he would pay them in full. The petitioning creditor was content with his assurance, but the other creditors were . .
Cited – Fitch v The Official Receiver CA 15-Nov-1995
Appeals from refusals to rescind bankruptcy orders. The bankrupts had, after lodging their appeals, persuaded the petitioning creditor and several other creditors to support the application. The first bankrupt was acting as agent in negotiations . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 December 2022; Ref: scu.652378
A bankruptcy petition was presented against the debtor and a receiving order was made upon it. He afterwards assured his creditors that he would pay them in full. The petitioning creditor was content with his assurance, but the other creditors were not. Despite their opposition the debtor applied to the registrar for the receiving order to be rescinded and the registrar rescinded it. The debtor now argued that although there was no scheme of arrangement or composition (and could not be having to the weight of opposition), and no ground upon which an adjudication could be annulled, nevertheless there were exceptional circumstances which justified the rescission of the receiving order.
Held: There were no such exceptional circumstances. It was merely a case of a debtor who had gained the belated sympathy of the petitioning creditor though not of all those who had submitted proofs, but who could make no concrete offer to his creditors.
Russell LJ distinguished Re Izod on the ground that in that case there was a de facto scheme of arrangement approved by all the creditors and arrived at in the course of proceedings subject to the scrutiny of the Official Receiver who did not oppose the application or insist upon a public examination. He concluded: ‘In our judgment the exceptional circumstances that justify the exercise of the power under Section 108(1) to rescind a receiving order and set aside the bankruptcy must be such as are closely analogous to the expressly recognised circumstances which enable a bankruptcy to be halted or annulled.’
Russell LJ
[1971] 1 WLR 1212
England and Wales
Distinguished – In Re Izod CA 1897
The debtor had presented his own petition and a receiving order was made upon it. An arrangement was later made under which the debtor’s father paid the creditors 10s. in the pound and the creditors released their debts. The creditors withdrew their . .
Cited – Fitch v The Official Receiver CA 15-Nov-1995
Appeals from refusals to rescind bankruptcy orders. The bankrupts had, after lodging their appeals, persuaded the petitioning creditor and several other creditors to support the application. The first bankrupt was acting as agent in negotiations . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 December 2022; Ref: scu.652379
Challenge to proof of debt
ICC Judge Barber
[2020] EWHC 1737 (Ch)
England and Wales
Updated: 31 December 2022; Ref: scu.652331
Application by Swissport Fuelling Limited for the court’s sanction under section 899 of the Companies Act 2006 of a scheme of arrangement.
Mils J
[2020] EWHC 1773 (Ch)
England and Wales
Updated: 31 December 2022; Ref: scu.652322
[2020] EWHC 1674 (Ch)
England and Wales
Updated: 31 December 2022; Ref: scu.652124
Two creditors’ bills were filed, The first alleged that the Defendant (who was the debtor’s widow and personal representative) had carried on the debtor s trade since his decease, and prayed for an account of the profits: the second prayed merely for the common relief. The Court held that there was an important difference in favour of the first suit, and refused to stay the proceedings in it, notwithstanding a decree had been obtained in the second.
[1849] EngR 428, (1849) 17 Sim 119, (1849) 60 ER 1073
England and Wales
Updated: 20 December 2022; Ref: scu.298733
Mrs. Rowe sued Mr. Glenister for breach of trust. The judge struck out the action for the want of prosecution.
Held: A witness’s memory loss is not itself a sufficient reason to strike out an action for want of prosecution. A defendant seeking a striking out for delay must also show some post-writ prejudice caused by the delay.
Times 07-Aug-1995, Ind Summary 11-Sep-1995
England and Wales
See Also – Glenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.88878
Mr Justice Adam Johnson
[2021] EWHC 874 (Ch)
England and Wales
Updated: 20 December 2022; Ref: scu.662123
Whether claimant required court permission to bring action against former court appointed receivers
[2021] EWHC 910 (Ch)
England and Wales
Updated: 20 December 2022; Ref: scu.662116
Appeals from refusals to rescind bankruptcy orders. The bankrupts had, after lodging their appeals, persuaded the petitioning creditor and several other creditors to support the application. The first bankrupt was acting as agent in negotiations which if successful would generate a commission which would clear the indebtedness.
Held: The court’s rejection of the request had been on an incorrect basis, and the CA must exercise it themselves. The circumstances of the present case were exceptional and they justified the rescission of the bankruptcy order.
‘The statutory discretion is in terms unlimited. The effect of a rule of law to the effect alleged would be to distort the nature of the enquiry upon which the Court ought to embark. That enquiry is whether the circumstances justify the rescission of the bankruptcy order, not whether they are sufficiently close to an informal scheme of arrangement.’
[1995] EWCA Civ 59, [1996] 1 WLR 242
England and Wales
Cited – In Re Izod CA 1897
The debtor had presented his own petition and a receiving order was made upon it. An arrangement was later made under which the debtor’s father paid the creditors 10s. in the pound and the creditors released their debts. The creditors withdrew their . .
Cited – In Re A Debtor No 12 of 1970 CA 1970
A bankruptcy petition was presented against the debtor and a receiving order was made upon it. He afterwards assured his creditors that he would pay them in full. The petitioning creditor was content with his assurance, but the other creditors were . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.471053
The trustee in bankruptcy sought to have set aside a charging order made over the bankrupt’s property before the commencement of the insolvency.
Held: ‘The principle that property acquired from a debtor (in good faith and without notice of the presentation of a bankruptcy petition) is entitled to retain that property against the trustee in bankruptcy represents a change not only to the position in respect of individual insolvency before the 1986 Act but also a departure from the position, both before and after the 1986 Act, in relation to corporate insolvency. ‘ The courts below were in error in failing to recognise, and give weight to, the legislative policy underlying section 346(1) of the 1986 Act.
[2009] EWCA Civ 811, [2010] Ch 318, [2009] 31 EG 73 (CS), [2009] NPC 102, [2009] BPIR 1047, [2009] 40 EG 132, [2009] 2 BCLC 695, [2010] 2 WLR 1097
Charging Orders Act 1979 3(5), Insolvency Act 1986 346(1)
England and Wales
Updated: 20 December 2022; Ref: scu.365615
[1837] EngR 700, (1837) 2 My and Cr 443, (1837) 40 ER 709
England and Wales
Updated: 20 December 2022; Ref: scu.313817
An agreement for wages, as purser, having been entered into by a master and sole owner, the purser, prior to the ship’s sailing, signed the usual articles, but in which there was no rate of wages specified for him. After the completion of the outward voyage he ceased, by the master’s orders, to do duty as purser, but was not regularly suspended for neglect of duty, the wages pronounced for, and a mortgagee, who opposed them, condemned in costs.
Quaere, whether though the owner be bankrupt, and the ship has been sold, and the proceeds are Insufficient to pay mortgagees, a principal mortgagee has sufficient interest to oppose a mariner’s claim for wages?
[1837] EngR 688, (1837) 3 Hag Adm 376, (1837) 166 ER 445
England and Wales
Updated: 20 December 2022; Ref: scu.313805
The appellant had been committed after failing to file evidence with the registrar after, in the insolvency of the company, another director had filed false evidence to explain missing funds. However the order had required the documents to be filed with his solicitors, and at the time he had none.
Held: The appeal failed. No reasonable man of business would have acted as had the defendant.
Mummery LJ, Jacob LJ, Stanley Burnton LJ
[2008] EWCA Civ 979, [2010] BPIR 496
England and Wales
Cited – Crystalmews Ltd (in Liquidation) v Metterick and others ChD 25-Oct-2006
Freezing orders had been made in the course of winding up proceedings after the company was found to have been involved in VAT fraud. Applications were made for the committal of defendants for breach of the freezing orders. . .
Cited – Lexi Holdings Plc v Luqman and others ChD 2-Jul-2007
Application was made for the committal to prison for contempt of court by the first defendant for breaches of court orders. . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.276835
The claimant sought damages from the respondent solicitors and insolvency practitioners for professional negligence. He had substantial business interests, but fell into financial difficulties, and sought assistance from the defendants. He failed to assist in the preparation of accounts. In a brief meeting during an adjournment of his creditors’ meeting, when he sought an IVA, he was advised of the necessity to agree to the sale of certain property.
Held: At this point the insolvency practitioner was acting as chair of the meeting, and in that capacity did not owe the claimant a duty of care. The solicitor was alleged to have been negligent in not advising him to seek an adjournment of the meeting for fourteen days. To hold him liable, the claimant had to show that there was a substantial chance of an adjournment achieving the desired result. The judge had decided that he would not in any event have provided the accounts, and the result would not have been different. Appeal against the dismissal of the claimant’s case dismissed.
Lord Justice Mummery, Lord Justice Clarke, Lady Justice Hale
[2002] EWCA Civ 1140, [2002] BPIR 1163, [2002] Lloyds Rep PN 584
England and Wales
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.174430
Bankruptcy order can be made against one partner without winding up partnership.
Times 09-Aug-1995
Insolvent Partnerships Order 1986/2142 art 15
England and Wales
Updated: 20 December 2022; Ref: scu.89051
Application within bankruptcy proceedings seeking a declaration that a security held by a lender was unenforceable pursuant to the Financial Services and Markets Act 2000.
Chief ICC Judge Briggs
[2021] EWHC 995 (Ch)
England and Wales
Updated: 20 December 2022; Ref: scu.662208
Liquidator’s claim against former members of Limited Liability Partnership.
Mr Hugh Sims QC
[2020] EWHC 1607 (Ch)
England and Wales
Updated: 20 December 2022; Ref: scu.652118
Chadwick, Laws, Jonathan Parker LJJ
[2005] EWCA Civ 247, [2005] CP Rep 33, [2006] 1 WLR 2194, [2005] 3 Costs LR 363, [2005] BPIR 454, [2005] 1 All ER 272
England and Wales
Updated: 12 December 2022; Ref: scu.223683
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice Nicholls said: ‘The question arising on this appeal concerns the exercise by the court of its power to set aside a statutory demand ‘on other grounds’ within sub-paragraph (d) [of rule 6.5(4)] In my view, the right approach to paragraph (4) of rule 6.5 is this. Under the Act, a statutory demand which is not complied with founds the consequence that the debtor is regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1), in the absence of an unsatisfied return to execution or other process, a debtor’s inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with. When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.’
and ‘When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.
This approach to sub-paragraph (d) is in line with the particular grounds specified in sub-paragraphs (a) to (c) of rule 6.5(4). Normally it would be unjust that an individual should be regarded as unable to pay a debt if the debt is disputed on substantial grounds: sub-paragraph (b). Likewise, if the debtor has a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt: sub-paragraph (a). Again, if the creditor is fully secured: sub-paragraph (c).’
and ‘Nevertheless, applying the approach which I have indicated above as the correct approach to these statutory provisions, in my view it by no means follows from the existence of these defects that this statutory demand ought to be set aside. The court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. That must require a court to have regard to all the circumstances as they are at the time of the hearing before the court. There may be cases where the terms of the statutory demand are so confusing or so misleading that, having regard to all the circumstances, justice requires that the demand should not be allowed to stand. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone.’ and
‘In these circumstances I am in no doubt that, despite the mistakes in this statutory demand and the use strictly of the incorrect form, and despite the debtor not being aware of the precise amount of the debt when the demand was served on him, justice does not require that this statutory demand should be set aside. I can see no injustice in the consequences which flow from non-compliance with a statutory demand being permitted to flow in this case, despite the existence of those features.’
Lord Justice Nicholls
[1989] 1 WLR 271, [1989] 2 All ER 46
Insolvency Rules 1986 (1986 No 1925) 6.1 6.5(4)(d), Police Act 1996 2
England and Wales
Cited – Coulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
Cited – TS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
Cited – Budge v AH Budge (Contractors) Ltd CA 1997
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why . .
Cited – White v Davenham Trust Ltd ChD 1-Nov-2010
. .
Cited – Mahon and Another v FBN Bank (UK) Ltd ChD 6-Jun-2011
The claimants appealed against a refusal to set aside a statutory demand. . .
Cited – White v Davenham Trust Ltd CA 28-Jun-2011
Appeal against order reinstating statutory demand. . .
Cited – Moore (T/A James Moore Earth Moving) v Inland Revenue ChNI 5-Dec-2001
Appeal against conditional setting aside of statutory demand. . .
Cited – Owo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Cited – Allen v Burke Construction Ltd ChNI 25-May-2010
. .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.220020
Section 236 extended the power of a liquidator to require from the company’s officers all the documents he would reasonably need in order to fulfil his duties under the Act.
Lord Slynn said: ‘The protection for the person called upon to produce documents lies, thus, not in a limitation by category of documents (‘reconstituting the company’s state of knowledge’) but in the fact that the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. A proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirement. An application is not necessarily unreasonable because it is inconvenient for the addressee of the application or causes him a lot of work or may make him vulnerable to future claims or is addressed to a person who is not an officer or employee of or a contractor with the company in administration, but all these will be relevant factors, together no doubt with many others.’
and: ‘the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. The proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirements.’
Lord Slynn
[1993] AC 426, [1992] 4 All ER 876, [1992] 3 WLR 853
England and Wales
Cited – Official Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
Cited – Green v BDO Stoy Hayward LLP ChD 2-Nov-2005
The liquidator sought production of the company’s books and documents held by the defendant as former auditors of the company.
Held: The power to order discovery could be more freely exercised against an officer of a company than against a . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.186362
The High Court has the power in an appropriate case to make an order requiring a bankrupt to stay within the jurisdiction.
Times 27-Dec-1995, Ind Summary 29-Jan-1996
England and Wales
Updated: 09 December 2022; Ref: scu.83857
Landlord bound by voluntary arrangement on future rent despite disagreement. A meeting chairman has power to impose ‘agreed’ value on claim to allow vote to creditor.
Ind Summary 18-Dec-1995, Gazette 17-Jan-1996, Times 07-Dec-1995
England and Wales
Updated: 09 December 2022; Ref: scu.80097
A petitioner’s change of mind and support can found a review or rescission of a bankruptcy order as a change of circumstances.
Gazette 24-Jan-1996, Times 21-Nov-1995, [1996] 1 WLR 242
England and Wales
Updated: 09 December 2022; Ref: scu.80579
Whether payment was preferential
Mr Justice Miles
[2021] EWHC 1018 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.662205
application to amend the Re-Amended Points of Claim
[2021] EWHC 1071 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.662198
CICCJ Briggs
[2021 EWHC 820 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.661644
Rights of contingent creditors to participate in CVA.
His Honour Judge Davis-White QC
[2020] EWHC 1648 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.652125
Insolvency and Companies Court Judge Burton
[2020] EWHC 1550 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.652227
[2020] EWHC 1551 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.651901
The application raises the apparently novel question of whether a fine imposed on a company by a criminal court is a provable debt in that company’s winding-up.
[2020] EWHC 1601 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.651899
There might have been a surplus after paying the debts due to the Inland Revenue (the major creditor).
Held: The way forward was for the trustee to agree the tax liability with the Revenue but only with the consent of the bankrupt. Walton J said: ‘So in substance it is really a question between the bankrupt and the Revenue with the trustee holding a watching brief to see that neither of them makes any fatal errors.’
Walton J
[1983] 1 WLR 183
England and Wales
Cited – Singh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.564437
Harman J held that it was for the bankrupt’s trustee alone to settle with the Crown in a case where the bankrupt had been discharged and there was no tax assessment.
Harman J
[1949] Ch 236
England and Wales
Cited – Singh v HM Revenue and Customs UTTC 15-May-2010
UTTC JUDICIAL REVIEW – the concession of ‘equitable liability’ known as the Noble practice – standing to bring judicial review proceedings – no.
The bankrupt objected to the attempted proof by the Revenue in . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.564436
[2015] EWHC 1755 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.549374
EAT Rights On Insolvency – Two separate Employment Tribunals decided that Claimants who had been employed (without knowing it) by a company which had entered a CVA were entitled to claim arrears of pay and holiday pay from the National Insurance Fund when subsequently the company went into liquidation. In each case, the reasoning was flawed: the first Judge introduced concepts which were not present in Part XII of the ERA 96; the second relied on a view of the meaning of the EC Directive 2008/94 which was shown by the Appellant to be mistaken. The parties agreed that unless modified by reference to the Directive the domestic legislation precluded the claims; the EAT held that the Directive did not require any such modification, nor any different interpretation.
Langstaff P J
[2013] UKEAT 0312 – 12 – 1402
EC Directive 2008/94, Employment Rights Act 1996
England and Wales
Updated: 09 December 2022; Ref: scu.495205
The rule against double proof is implicit in the Insolvency Act 1986, and ‘remains good law. It is an overarching principle which still applies to insolvency, and nothing in Stein v Blake [1996] AC 243 calls it into question.’
Neuberger J
[2000] BPIR 456
England and Wales
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.449845
In appointing the administrators, the wrong form had been used. The court was asked to use its powers to cure the mistake. The failure to file the correct form was overlooked, with the result that one of the prerequisites of an appointment taking effect under paragraph 31 remained unsatisfied. However, the administration was carried on successfully for about a year, and the error only came to light when the administrator proposed to put the company into voluntary liquidation. He then sought directions as to whether he had been validly appointed, and whether there was any way that the failure to file the correct form could be waived.
Held: The only solution was to make administration anew, but with retrospective effect. The failure could not be waived under rule 7.55, because the result of the failure was that the administration had never started and accordingly there were no ‘insolvency proceedings’ within the meaning of rule 7.55. In making the administration to take effect on a date earlier than that of the order itself, Hart J said that any such jurisdiction should be exercised ‘with extreme caution’.
Hart J
[2007] BPIR 1275
England and Wales
Cited – In re Care Matters Partnership Ltd ChD 7-Oct-2011
An application was made for the appointment of administrators with retrospective effect.
Held: ‘there are two separate questions. The first question is whether an administration order should be made at all. This requires both the satisfaction . .
Cited – Hill v Stokes plc ChD 2010
The court approved the appointment of a company administrator with reprospective effect. . .
Cited – In re Derfshaw Ltd and Others ChD 2-Jun-2011
The court considered applications for administration orders made by six companies at the instigation of directors of those companies, and the appointment of administrators with retrospective effect.
Held: Morgan J said that he could see scope . .
Applied – In re Kaupthing Capital Partners ChD 2010
. .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.445158
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
[2011] EWHC 2860 (Ch), [2012] BCC 115
England and Wales
Updated: 09 December 2022; Ref: scu.448119
Short but somewhat difficult point under the provisions governing the vesting of disclaimed property of a bankrupt’s estate under section 320 of the Insolvency Act 1986
Roth J
[2011] 45 EG 96 (CS),, [2012] 2 EG 68, [2011] EWHC 2829 (Ch)
England and Wales
Updated: 09 December 2022; Ref: scu.448120
application for permission to appeal
[2009] EWCA Civ 231, [2009] RVR 88
England and Wales
Updated: 09 December 2022; Ref: scu.374405
what should be the approach of the court on an application by a liquidator for leave to compromise proceedings.
[1999] EWCA Civ 3046, [1999] BCC 463, [1999] 1 BCLC 635
England and Wales
Updated: 09 December 2022; Ref: scu.372639
[1852] EngR 410, (1852) 1 De G M and G 491, (1852) 42 ER 642
England and Wales
Updated: 09 December 2022; Ref: scu.295533
The company claimed the benefit of an insurance policy. They had paid certain premiums and the trustee had made a declaration that it was held on trust for the company. The insured died in Scotland, intestate and insolvent.
Held: The declaration of trust was a transaction at an undervalue. The policy was held on trust to return the premiums to the company, with the balance upon trust for the deceased’s insolvent estate.
Judge Norris QC
[2003] EWHC 1999 (Ch), [2003] BPIR 1444
England and Wales
Preliminary hearing – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 15-Nov-2002
The deceased had a valuable life insurance policy. Before an operation he wrote it in trust with no consideration. He died in the operation. He was insolvent. The issue was as to when the policy was to be valued.
Held: The property was to be . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – Phillips (Liquidator of A J Bekhor and Co ) and Another v Brewin Dolphin Bell Lawrie HL 18-Jan-2001
The company sold its business to the respondent for one pound, but the respondent agreed to sublease computer equipment for an amount equivalent to the value of the company. The company defaulted, and the computer equipment was recovered. The . .
Cited – National Westminster Bank plc v Jones and Others CA 24-Oct-2001
The respondent farmers charged the farm by way of an agricultural floating charge to the claimants. On coming into difficulties, they set up a limited company and granted a tenancy in its favour and transferred assets to it. The bank obtained . .
Appeal from – Ramlort Ltd v Michael James Meston Reid CA 8-Jul-2004
The company sought to claim under a life policy. The deceased had died in Scotland insolvent. The trustee of the policy had declared that he held it on trust for the claimant, but the defendant, the judicial factor of the estate, said the . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.213657
The company sought to strike out a winding up petition presented by the respondents, saying a winding up petition was by way of an action, and was barred by statute after six years.
Held: A winding up petition was not an action within the section and was not time barred after 6 years.
LTL 21 May 2004
England and Wales
Disapproved – Re a Debtor ChD 1997
The creditor appealed the decision to set aside a statutory demand as statute barred.
Held: The appeal was dismissed. Bankruptcy proceedings based on a statutory demand for moneys due under a previous default judgment constituted ‘an action . .
Appeal from – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.199817
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this breach, and before the commencement of the action, became bankrupt; and the question was, whether this cause of action passed from the plaintiff to his assignees.
Held: Lord Mansfield said: ‘The general principle is, that all rights of the bankrupt which can be exercised beneficially for the creditors do so pass, and the right to recover damages may pass though they are unliquidated . . This principle is subject to exception. The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely, not curing, not saving from imprisonment by process of law . .’
Lord Mansfield, Erle CJ
[1849] EngR 843, (1849) 2 HLC 579, (1849) 2 HL Cas 579, (1849) 9 ER 1213
England and Wales
See Also – Beckham v Knight And Drake 24-Jan-1838
K and S having entered into a written engagement to employ Plaintiff in their trade for seven years.
Held: The Plaintiff could not sue D, a dormant partner with K. and S., but not party to the agreement. . .
See Also – Beckham v Knight And Drake CEC 28-Jun-1840
By a contract between the plaintiff and A and B, it was agreed that the plaintiff should serve A and B as foreman in their business for seven years, if A and B, or either of them, should so long live. – The plaintiff having subsequently discovered . .
See Also – Beckham v Drake, Knight, And Surgey 10-Jul-1841
. .
See Also – Beckham v Drake, Knight, And Surgey 19-Nov-1841
. .
See Also – Drake And Others v Beckham 6-Feb-1843
. .
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Cited – Wilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.185412
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position of a receiver and manager appointed by a mortgagee to run a business, ‘The proposition that, in managing and carrying on the mortgaged business, the receiver owed the mortgagor no duty other than that of good faith offends, in my opinion commercial sense. The receiver is not obliged to carry on the business. He can decide not to do so. He can decide to close it down. In taking these decisions he is entitled, and perhaps bound, to have regard to the interests of the mortgagee in obtaining repayment of the secured debt. Provided he acts in good faith, he is entitled to sacrifice the interests of the mortgagor in pursuit of that end.
The mortgagee or receiver, when exercising the power of sale, must therefore act in good faith with a view to securing repayment of the debt by the conversion of the security into money. The timing of the sale will be a matter for them, unaffected by the wishes of the mortgagor. But the preparation for and the method of sale to be adopted will be matters in respect of which there is no conflict between the interests of the mortgagor and the mortgagee, and where the mortgagee or receiver will be potentially liable to the mortgagor if he fails to act with reasonable care so as to obtain a proper price. In this context it is clear that the property must be fairly and properly exposed to the market, absent perhaps cases of real urgency. Similarly, as part of this duty of care, the receiver may be required to take positive steps to maintain the value of the property. . . . the mortgagee or a receiver appointed by him is required to incur expense in the improvement of the security in order to sell it at a higher price or to embark on making applications for planning permission, granting leases or the like, which, however well-founded, are likely to delay a sale beyond the normal period of marketing.’
Sir Richard Scott V-C
Gazette 16-Jun-1999, [1999] EWCA Civ 1482, [2000] Ch 86, [1999] 3 All ER 97, [1999] 2 EGLR 75, [1999] 3 WLR 922, [1999] 2 BCLC 221, [1999] BCC 771, [1999] 29 EG 119, [1999] EG 81, [1999] Lloyd’s Rep PN 844, [1999] PNLR 920, [1999] BPIR 712
England and Wales
Cited – Knight v Lawrence 1993
As part of his duty of care, a receiver may be required to take positive steps to maintain the value of the property. . .
Cited – Freeguard v Royal Bank of Scotland plc ChD 26-Mar-2002
The applicant had an option to purchase land, but neither the option, nor the subsequent charge were registered. The land was sold by the respondent under a power of sale, and the claimant sought damages for the respondent having negligently failed . .
Cited – The Estate of Mohammed Sabir Raja (Deceased) v Austin Gray (A Firm) QBD 31-Jul-2002
The claimant sought damages for negligent valuation of properties belonging to the deceased, but taken into receivership under charges taken by a company who in turn charged its assets to a bank. When the debenture was enforced, the charges were . .
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Followed – Kenneth Starling v Lloyds TSB Bank plc CA 10-Nov-1999
The setting aside of the statutory power of a mortgagor in possession to grant a lease, by the mortgage itself did not create in the lender a duty of good faith properly to consider a request from the mortgagor for permission to let the property. It . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – Silven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.146397
There is but one High Court which is merely administratively divided into different Divisions: ‘there is now only one court – the High Court of Justice.’
Vaisey J
[1959] Ch 368, [1959] 3 All ER 221
England and Wales
Updated: 07 December 2022; Ref: scu.652151
Thorpe J, having conducted a detailed analysis of the evidence, concluded ‘that the husband has, in my judgment, so obfuscated his financial position and services that it is quite impossible for this court to be sure as to what he has now in residue.’ Whilst there ‘may well be reality’ and ‘a genuine ingredient’ in aspects of the husband’s case, the approach emphasised in J v J meant that: ‘if (the husband) has conducted his affairs throughout the marriage in such a covert fashion as to relieve him of the ordinary obligations of citizenship to support the State through tax contribution, if he has conducted these proceedings in a vain endeavour to maintain that camouflage, if in consequence the obscurity of my final vision results in an order that is unfair to him it is better that than that I should be drawn into making an order that is unfair to the wife. If at the end of this case he feels that the lump sum that I order is unfair in reflection of his present retrenchment then he should remember that he has brought that consequences upon himself by the fashion in which he has chosen to arrange his affairs over the course of the last decade, coupled with the fashion in which he has chosen to conduct these proceedings.’ and: If it were left to me in a vacuum to decide what to do for this wife in this case, I would find it a difficult decision and one without any apparent signposts’. However, he was ‘content to make the order’ sought by the wife, namely for a lump sum of pounds 150,000, which had not been ‘attacked by (counsel for the husband) as being in any sense excessive’.
Thorpe J
[1994] 1 FLR 359
England and Wales
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.652150
The claimant sought the restoration of 31 companies to the register, so as to be appointed liquidator and to investigate possible claims against former officeholders.
ICC Judge Barber
[2020] EWHC 1561 (Ch)
England and Wales
Updated: 07 December 2022; Ref: scu.652120
Application by the joint administrators of a partnership affording the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
Held: The equitable principle of marshalling did appear to apply as between the bank and M. The bank had been able resort to two securities in support of its lending to the partnership: first the agricultural charge over partnership assets (including the dog), and secondly third party legal charges over the farms.
Norris J
[2016] EWHC 2650 (Ch), [2017] Ch 422, [2017] BPIR 164, [2017] 3 WLR 198, [2017] WLR(D) 157
England and Wales
Cited – In Re Ritson, Ritson v Ritson CA 1899
The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] . .
Cited – In Re Ritson ChD 1898
. .
Appeal from – Highbury Pension Fund Management Company and Another v Zirfin Investments Management Ltd and Others CA 3-Oct-2013
Lewison LJ discussed the operation of the principle of marshalling: ‘One consequence of the application of the principle is that if the first mortgagee with more than one security satisfies his debt out of the property over which the second . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.570475
Set aside application – no knowledge of proceedings
His Honour Judge Behrens
[2012] EWHC 195 (Ch)
England and Wales
Updated: 07 December 2022; Ref: scu.451433
Unreported, 28 October 2002
England and Wales
Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.392575
The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy.
Munby J
[2007] EWHC 1856 (Fam), [2008] 1 FLR 453
England and Wales
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.260013
A statute-barred debt cannot be proved in bankruptcy.
[1960] 1 WLR 1907
England and Wales
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.244182
Neuberger J
[2001] EWHC 700 (Ch)
England and Wales
Adopted – Agrotexim and Others v Greece ECHR 24-Oct-1995
Hudoc Not necessary to examine preliminary objection (ratione temporis); Preliminary objection allowed (victim); Lack of jurisdiction (complaint inadmissible, new complaint)
The applicant companies held . .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.237285
The 1930 Act creates a statutory assignment of any rights of action in a case where the assured has become bankrupt or been wound up, the party to whom the benefit of a right of action under the liability insurance contract has been transferred may only operate that right in accordance with an arbitration agreement in the contract of insurance even if that agreement is expressed to refer only to the parties to the contract of insurance and not in terms wide enough to cover a statutory assignee.
[1984] 2 Lloyds Rep 408
Third Parties (Rights against Insurers) Act 1930
England and Wales
Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.187712
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission brought an action of trover against the defendant. The partners were joint tenants at law (though not in equity) of partnership property. The defendants submitted that the plaintiffs could not recover on either count. If at the date of the sale to the defendant the goods were the property of both partners as alleged in the first count (ie. if the joint tenancy had not been severed by the act of bankruptcy) then each partner had the right to dispose of the whole, and the disposal of one partner was the disposal of both: but if the partnership was dissolved by the act of bankruptcy of one partner (so that the joint tenancy was severed) the action still could not be maintained; for then the assignees under the commission and the solvent partner would be tenants in common, and trover and detinue did not lie at the suit of one tenant in common against another.
Held: The act of bankruptcy dissolved the partnership and severed the joint tenancy. ‘An act of bankruptcy by one partner, is to many purposes a dissolution of the partnership, by virtue of the relation in the statutes, which avoid all the acts of a bankrupt from the day of his bankruptcy; and from the necessity of the thing, all his property being vested in the assignees, who cannot carry on a trade.’
Lord Mansfield
(1776) 2 Cowp 445
England and Wales
Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Cited – Morgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.186745
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other.
Page Wood V-C
(1856) 2 K and J 496
England and Wales
Followed – Fraser v Kershaw 1856
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other. . .
Followed – Fraser v Kershaw 1856
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other. . .
Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.186746
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December a creditor obtained judgment against the debtor and issued a writ of execution. The sheriff thereupon seized goods belonging to the debtor. On 8th. December the debtor was declared bankrupt and the commissioners executed an assignment. The sheriff afterwards sold the goods. Counsel for the plaintiffs posed two questions: (1) whose property the goods were when they were seized by the sheriffs? and (2) whose property they were when sold by the sheriffs? As to the first he submitted that ‘After the act of bankruptcy, they ceased to be the property of the bankrupt himself; wheresoever else the property might be between the act of bankruptcy and the assignment. . . Here the plaintiffs have declared as assignees under the commission of bankruptcy: therefore their interest vests as from the time of the act of bankruptcy.’ Counsel for the defendants submitted that ‘The property is in the bankrupt till assignment: and the subsequent sale cannot make the sheriff a wrong-doer by a fictitious relation.’
Held: In favour of the plaintiffs. ‘Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action: 1st, property in the plaintiff; and 2dly a wrongful conversion by the defendant. As to the first, it is admitted in the present case that the property was in the plaintiffs as on and from the 4th. December (which was before the seizure) by relation. This relation the statutes concerning bankrupts introduced to avoid frauds. They vest in the assignees all the property that the bankrupt had at the time of what I may call the crime committed (for the old statutes consider him a criminal): they make the sale by the commissioners good against all persons who claim by, from, or under the bankrupt after the act of bankruptcy and against all executions not served and executed before the act of bankruptcy. Dispositions by process of law are put on the same foot with dispositions by the party: to be valid, they must be completed before the act of bankruptcy. Therefore as to the first point, it is most clear that the property was in the plaintiffs as on and from the 4th. December when the act of bankruptcy was committed’
Lord Mansfield
(1756) 1 Burr 19
England and Wales
Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Cited – Smith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.186744
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an action in trover against Stokes. The action could not be maintained if Stokes as Strickland’s executor was a tenant in common of the goods. Counsel for the plaintiffs contended: ‘The property was originally vested in the two partners as joint tenants, and nothing happened during the life of Strickland to convert their title into a tenancy in common; for he died before the commissioners’ assignment was made, and consequently before the bankrupt laws had attached upon the legal title of the bankrupt so as to destroy the joint tenancy. The act of bankruptcy, which happened before Strickland’s death, could not of itself operate to dissolve the joint-tenancy, or sever the title of the parties, and convert it into a tenancy in common . . The relation back of the assignment to the act of bankruptcy, in order to avoid mesne acts of the bankrupt, is by force of the bankrupt laws, and is quite distinct in its operation from the change of title effected in the property by such assignment, from a joint tenancy in common, which results from the rules of the common law in consequence of the conveyance, and which has no relation back.’
Held: Rejecting the submission, ‘In this case it was not the act of bankruptcy alone that dissolved the joint tenancy, but the act of bankruptcy followed by the commission and assignment. Nothing passes to the assignees till the assignment; but when that is executed, they are in by legal relation to the time of the act of bankruptcy . . This is the essential object of the bankrupt laws, and the uniform operation of them’. The court then referred to the exceptional case under the royal prerogative and continued ‘In all other instances the relation takes place. The effect of it then in this case is, that the assignees became tenants in common by relation from the time of the act of bankruptcy with the other partner in his lifetime, and since his decease with his representatives, one of whom is the present defendant; and then the rule of law attaches, that one tenant in common cannot maintain trover against another’
Lord Kenyon CJ
(1801) 1 East 363
England and Wales
Cited – Cooper v Chitty 1756
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December . .
Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Cited – Morgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.186748
(1801) 1 East 368
England and Wales
Mentioned – Morgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.186751
The evidence disclosed a genuine triable issue as to whether there was a current liability to pay a sum equalling or exceeding andpound;750 and so a statutory demand had rightly been set aside. The judge had found that the debtor had a substantial argument that he might owe less than andpound;750. There the judge had found that the debtor had a substantial argument that he might owe less than andpound;750. Sir Donald Nicholls V.-C. said of Rule 6.5(4)(b) (at p.70): ‘It cannot be that a dispute as to part only enables the debtor to have the whole demand set aside even if, for example, there is no dispute concerning his liability to pay some other specific amount.’
Sir Donald Nicholls V-C
[1995] Ch 66
England and Wales
Cited – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.184797
EAT Insolvent Employer – The onus is on the applicant seeking payment for lost wages from the Secretary of state to establish that the employer company is insolvent. There must be proof of the occurring of an event falling within section 183(3)
EAT Insolvency – (no sub-topic)
His Honour Judge Peter Clark
EAT/905/98, [1999] UKEAT 905 – 98 – 0107, [2000] IRLR 168
Employment Rights Act 1996 183(3)
England and Wales
Cited – The Secretary of State for Business Innovation and Skills v Coward and Another EAT 21-Jul-2011
EAT RIGHTS ON INSOLVENCY
The Employment Judge erred in law in making an award of notice pay under section 182 of the Employment Rights Act 1996 when the employer company was not insolvent as defined in . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.171389
The applicant sought an order pursuant to section 896 of the Companies Act 2006, convening a meeting of its scheme creditors to consider a scheme of arrangement.
Miles J
[2020] EWHC 1499 (Ch)
England and Wales
Updated: 07 December 2022; Ref: scu.652127
[2020] EWHC 1406 (Ch)
England and Wales
Updated: 06 December 2022; Ref: scu.651126
[2018] ScotCS CSOH – 90
Scotland
Updated: 06 December 2022; Ref: scu.622445
Allegation that the payment of dividends was in breach of Part 23 of the 2006 Act. The direcors had signed the necessary certificate as to solvency before resolving to reduce the company capital and paying a dividend.
Held: When making such a statement, the directors were not being asked what would be the position if a calamity occurred. The test was whether at the time and circumstances of the statement, and taking account of the anticipated contingencies, the company was solvent.
However, the payment of a dividend could be a transaction at an undervalue within section 423(1) of the 1986 Act.
Rose J
[2016] EWHC 1686 (Ch), [2016] WLR(D) 388, [2017] Bus LR 82
Companies Act 2006, Insolvency Act 1986 423(1)
England and Wales
See Also – BTI 2014 Llc v Sequana Sa and Others ChD 10-Feb-2017
Applications and orders following dismissal of principle claim. . .
Appeal from – BTI 2014 Llc v Sequana SA and Others CA 6-Feb-2019
The Court considered a Director’s duty to act in the interests of his company’s creditors. The Directors were said to have paid out an excessive dividend to put assets beyond the reach of its creditors. . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.566875
The Commissioners claim was founded in an alleged conspiracy from a ‘missing trader intra-community fraud’ amounting to andpound;96 million.
Held: Section 423 had extra territorial effect.
David Richards J
[2010] EWHC 1799 (Ch), [2011] BPIR 59
England and Wales
Cited – Regalway Care Ltd v Shillingford and others ChD 25-Feb-2005
Applications to vary freezing order. Blackburne J set out a description of the workings of missing trader intra-community VAT carousel frauds. . .
Cited – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.420810
The Revenue sought the defendant’s liquidation, challenging the sum fixed to be due by the chairman of the meeting and the football rules which gave preference to football debts over those of others. The dispute was as to treament of receipts for players’ image and associated rights. They were paid into discretionary trust funds, and payment of NIC and PAYE only being said to fall due on allocation of the benefit to the player. HMRC claimed 14 million pounds in this respect. Football creditors, who would in any event be paid in full were also given full voting rights in the administration.
Held: HMRC’s claims failed.
Mann J
[2011] BCC 149, [2010] BPIR 1123, [2010] EWHC 2013 (Ch)
Insolvency Act 1986 6, Insolvency Rules 1986 1.17
England and Wales
Updated: 06 December 2022; Ref: scu.421494
The bankrupt wished to discharge his bankruptcy debt, but challenged the trustee’s fees.
Held: The court approved application of the Practice Statement 2004.
Proudman J said: ‘The court’s task is to balance all the various criteria, resolving any conflict between them arising in the particular case, in order to arrive at the proper level of remuneration. In doing so, it is settled law that the court has to reward the value and benefits of the services rendered rather than the cost of rendering such services. Thus, in fixing the remuneration, time spent is less relevant than value provided. I was referred to the judgment of Ferris J in Mirror Group Newspapers plc v Maxwell and Others (No 2) [1998] 1 BCLC 638, [1998] BCC 324 and also Cooper v The Official Receiver [2005] NICh 1. The onus of demonstrating such value or benefit is on the applicant and the court must resolve any element of doubt in favour of the estate.’
Proudman J
[2009] EWHC B13 (Ch), [2009] BPIR 810
Insolvency Act 1986 375(2), Insolvency Rules 1986 74(2), Practice Statement: The Fixing and Approval of the Remuneration of Appointees (2004)
England and Wales
Cited – Brook v Reed CA 25-Mar-2011
The court was asked ‘What relation should the costs and remuneration bear to the circumstances, and in particular the size, of the bankruptcy?’ The bankrupt had considered that the costs first awarded to the trustee in bankruptcy and the trustee’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.420430
The insolvent company held assets for its clients. The liquidators proposed a scheme of arrangement which would allow them protection.
Held: The 2006 Act was to allow arrangements between a company and its creditors. The company’s former clients with proprietary interests which were held in trust for them by the company were not creditors. The court had no jurisdiction to sanction a scheme of arrangement which included those proprietary interests.
Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Longmore and Lord Justice Patten
Times 12-Nov-2009, [2009] EWCA Civ 1161
Insolvency Act 1986, Companies Act 2006
England and Wales
Appeal from – Lehman Brothers International (Europe) (No 2), Re ChD 21-Aug-2009
Parties said that assets of the insolvent company were held by it in trust for them.
Held: The court had no jurisdiction to sanction a scheme of arrangement proposed by the administrators between the company and former clients who had . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.377778
Insolvency law may enable the court to apply a foreign law. Wynn-Parry J said: ‘It appears to me that the simple principle is that this court sits to administer the assets of the South African company which are within its [i.e. the English court’s] jurisdiction, and for that purpose administers, and administers only, the relevant English law; that is, primarily, the law as stated in the Companies Act 1948 looked at in the light, where necessary, of the authorities. If that principle be adhered to, no confusion will result. If it is departed from, then for myself I cannot see how any other result would follow than the utmost possible confusion.’
Wynn-Parry J
[1951] Ch 165
England and Wales
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.266614
Application to set aside a statutory demand.
[2005] BPIR 1394
England and Wales
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.258443
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which the claimant now sought to enforce.
Held: The possibility of a future costs order was not a liability, contingent or otherwise, at the date of the bankruptcy and was therefore not a debt from which Mr Glenister’s discharge from bankruptcy released him. Under Order 62 Rule 3(2) the claimant had no right to recover the costs except under an order of the court. Whether or not to award costs was entirely in the discretion of the court. Unless and until the court exercised its discretion to make an award of costs, no debt of any kind existed. The making of an order for costs by a court could be seen as a contingency, in the sense of being something that might happen in the future, but it was not a contingent liability. Thorpe LJ said that a distinction had to be drawn between a liability and the risk of a liability.
Thorpe LJ
Gazette 19-May-1999, [1999] EWCA Civ 1221, [2000] Ch 76, [1999] 3 WLR 716, [1999] BPIR 674, [1999] 3 All ER 452
Rules of the Supreme Court Ord 62 r3(2), Supreme Courts Act 1981 51
England and Wales
See Also – Rowe v Glenister and Others CA 7-Aug-1995
Mrs. Rowe sued Mr. Glenister for breach of trust. The judge struck out the action for the want of prosecution.
Held: A witness’s memory loss is not itself a sufficient reason to strike out an action for want of prosecution. A defendant seeking . .
Distinguished – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Cited – Casson and Another v The Law Society Admn 20-Oct-2009
Two solicitors had been made bankrupt and then discharged from bankruptcy. They suffered adjudications by the SDT awarding compensation for matters occurring before the bankruptcies. They appealed, saying that the awards were bankruptcy debts from . .
Applied – Steele, Regina (on the Application of) v Birmingham City Council and The Secretary of State for Work and Pensions CA 16-Dec-2005
The claimant had received an overpayment of benefits (Job seeker’s allowance), but then was made bankrupt. He now said that this was a debt in the bankruptcy.
Held: It was not. At the date of the bankruptcy order, the possible reclaim was not . .
Cited – McCartney and Unite The Union and Another v Nortel Networks UK Ltd (In Administration) ChD 22-Apr-2010
The administrators gave employees of the company notice of termination of their employment. Then administrators refused consent under para 43(6) to actions against the company in the Northern Ireland Industrial Tribunal for protective awards, unfair . .
Cited – In re T and N Ltd and Others, Re Insolvency Act 1986 ChD 14-Dec-2005
The court considered the case of Glenister and similar and said: ‘I accept the submission that these cases are not in point to the issue as regards future asbestos claims. There is no element of discretion as regards such claims. If the ingredients . .
Disapproved – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Cited – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.80871
Miles J
[2021] EWHC 448 (Ch)
England and Wales
See Also – Oyston and Another v Rubin and Another ChD 19-Jun-2020
. .
See Also – Oyston and Another v Rubin and Another ChD 4-May-2021
. .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2022; Ref: scu.659549
Snowden J
[2020] EWHC 1469 (Ch)
England and Wales
Updated: 05 December 2022; Ref: scu.651210
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed an act of bankruptcy. The defendants afterwards sold the flour. Perrin was petitioned in and adjudicated bankrupt. The assignees in bankruptcy brought an action to recover the proceeds of the sale.
Held: The action could not succeed: ‘The defendants sold the goods in question after the bankruptcy by the direction of Shute; and I am of opinion that they were justified in so doing, since they had the authority of the solvent partner, who had a right to deal with the property as his own.’ (Parke) ‘Shute, the solvent partner, directed the defendants to sell the flour. Now it is clear that one tenant in common may dispose of the common property; and therefore, when the flour was sold by the defendants, it was properly sold so far as Shute was concerned. Then the effect of the bankruptcy was to render the assignees tenants in common of the goods with Shute. But it is well established that one tenant in common cannot maintain an action against his companion, unless there has been a destruction of the particular chattel or something equivalent to it. That being so, the defendants are not wrong doers, for they have acted under lawful authority. The case of Fox v. Hanbury (Cowp. 445), which was followed by Smith v Stokes (1 East, 363), Smith v. Oriell (1 East. 368), Harvey v. Crickett (5 M. and Selw. 336), and Woodbridge v. Swann (4 B. and Ad. 633) decided that, after an act of bankruptcy committed by one of two partners, the solvent partner is capable of disposing of the partnership property.’
Baron Parke dealt with the capacity of one tenant in common to maintain an action in conversion against his companions, and said that such an action was not maintainable unless there has been destruction of the particular chattel or something equivalent to its destruction.
Pollock CB, Parke B
(1853) 9 Exch 144, [1853] EngR 887, (1853) 9 Exch 145, (1853) 156 ER 62, (1853) 9 Exchequer 145
England and Wales
Cited – Fox v Hanbury 1776
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission . .
Cited – Smith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Mentioned – Smith v Oriell 1801
. .
Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Cited – Regina v Bonner and Others CACD 24-Feb-1970
The appellants challenged their convictions for theft, saying that as partners in a firm they could not be convicted of theft of partnership property.
Held: The appeals were allowed for the unsatisfactory and unsafe nature of the convictions . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2022; Ref: scu.566422
Two sons were made bankrupt after the death of their father who was surety under a loan.
[1896] 2 Ch 584
England and Wales
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2022; Ref: scu.449851
The court considered the extent of its inherent power if any to prevent not only abusive applications within proceedings, but also new proceedings entirely and also at County Court level.
[1999] 3 WLR 670, [1999] EWCA Civ 3043, [2000] Ch 484, [2000] BPIR 14
England and Wales
Updated: 05 December 2022; Ref: scu.146045
Appeal against refusal to order strike out of claim as abuse of process.
[1999] EWCA Civ 1047
England and Wales
Updated: 05 December 2022; Ref: scu.145962
Having waived his right to a dividend under a voluntary arrangement, a creditor could not object to its later variation to include other creditors, despite an absence of explicit power in the deed for this purpose. Waiver should have been made explicit.
Times 14-Apr-1999, [1999] EWCA Civ 1039, [1999] 3 All ER 72
England and Wales
Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2022; Ref: scu.85656
Hughes LJ said: ‘it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to a duty not to misrepresent. It consists in a duty to consider what any other interested party would, if present, wish to advance by way of fact, or say in answer to the application, and to place that material before the judge. The duty applies to an applicant for a restraint order under POCA in exactly the same way as to any other applicant for an order without notice. Even in relatively small value cases, the potential of a restraint order to disrupt other commercial or personal dealings is considerable. The prosecutor may believe that the defendant is a criminal, and he may turn out to be right, but that is yet to be proved. An application for a restraint order is emphatically not a routine matter of form, with the expectation that it would be routinely granted. The fact that the initial application is likely to be forced into a busy list, with very limited time for the judge to deal with it, is yet further reason for the obligation of disclosure to be taken very seriously. In effect, the prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge.’
Sir Andrew Morritt Ch, Arden, Hughes LJJ
[2010] EWCA Civ 137, [2011] 1 Ch 33, [2010] Lloyds Rep FC 357, [2010] 3 WLR 941, [2010] BPIR 679, [2010] Bus LR 1270
Cross Border Insolvency Regulations 2006
England and Wales
Appeal from – In re Stanford International Bank Ltd and Others ChD 3-Jul-2009
Sir Andrew Morritt explained the relationship of the Regulation, the Model Law, and the still earlier European Convention on Insolvency Proceedings: ‘To understand the arguments and explain my conclusion it is necessary to consider the evolution of . .
See Also – In re Stanford International Bank Ltd and Others ChD 9-Jul-2009
One of the parties wanted to request permission to appeal, but had not done so at the hearing. The court considered whether it had power to do so at a later hearing.
Held: It did not. The Rules set out a deliberately prescriptive regime which . .
Appeal from – Stanford International Bank Ltd v Director of The Serious Fraud Office SC 15-Feb-2012
The Court heard an interim application to decide whether an appeal to the Supreme Court existed under the 2002 Act. A restraint order had been made as to the appellants assets.
Held: The statutory provisions substituting the Supreme Court for . .
Cited – AB and Another, Regina (on The Application of) v Huddersfield Magistrates’ Court and Another Admn 10-Apr-2014
The claimants challenged the lawfuness of search warrants issued by the respondent court. They were solicitors, and were related to a person suspected of murder who was thought to have fled the country. The officers were looking for evidence that . .
Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
Cited – Mills and Another, Regina (on The Application of) v Sussex Police and Another Admn 25-Jul-2014
The claimants faced criminal charges involving allegations of fraud and corruption. They now challenged by judicial review a search and seizure warrant saying that it was unlawful. A restraint order had been made against them and they had complied . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 December 2022; Ref: scu.401845
[2009] EWCA Civ 1129
England and Wales
Updated: 04 December 2022; Ref: scu.377817
[1996] EWCA Civ 1344, [1996] 4 All ER 933, [1997] 1 WLR 515, [1997] BCC 112, [1996] 2 BCLC 597
England and Wales
Updated: 04 December 2022; Ref: scu.372644
Sir Andrew Morritt explained the relationship of the Regulation, the Model Law, and the still earlier European Convention on Insolvency Proceedings: ‘To understand the arguments and explain my conclusion it is necessary to consider the evolution of both the Insolvency Proceedings Regulation and UNCITRAL. Both were preceded by the European Convention on Insolvency Proceedings. Its preparation began in 1960. It was open for signature by member states from 23 November 1995. The Convention applied to proceedings which satisfied four conditions but as there might be more than one proceeding satisfying those conditions it also provided for ‘main insolvency proceedings’. They were defined as proceedings in the contracting state where the debtor had his centre of main interests. In May 1996 the UK Government refused to sign the Convention. In July 1996 there was signed what became known as the Virgos-Schmit Report on the Convention (Report on the Convention on Insolvency Proceedings, Brussels, 3 May 1996). Though never formally adopted, it was and is regarded as an authoritative commentary on the Convention and the subsequent regulation derived from it.’
Sir Andrew Morritt (Chancellor), Arden LJ, Hughes LJ
[2011] 1 Ch 33, [2009] EWHC 1441 (Ch), [2010] 3 WLR 941, [2010] Bus LR 1270, [2010] Lloyd’s Rep FC 357, [2010] BPIR 679
Cross-Border Insolvency Regulations 2006
England and Wales
See Also – In re Stanford International Bank Ltd and Others ChD 9-Jul-2009
One of the parties wanted to request permission to appeal, but had not done so at the hearing. The court considered whether it had power to do so at a later hearing.
Held: It did not. The Rules set out a deliberately prescriptive regime which . .
Appeal from – Stanford International Bank Ltd, Re CA 25-Feb-2010
Hughes LJ said: ‘it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to a duty not to misrepresent. It consists in a duty to consider what any other . .
Cited – Olympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 December 2022; Ref: scu.347459
The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the estate to his trustee.
Held: The value of the estate was payable to the trustee in bankruptcy. Once the right vested in the trustee, it could not revert to the bankrupt on release. ‘ the Trustee has never had any proprietary interest in Mrs. Hemming’s half-share of the cottage, or in the proceeds of sale of that specific property. Accordingly, if and to the extent that the Trustee asserted any present entitlement to the proceeds of sale in the hands of Raymond Saul and Co., that claim was unjustified. ‘
Richard Snowden, QC
[2008] EWHC 2731 (Ch), Times 09-Dec-2008, [2008] WTLR 1833, [2008] NPC 122, [2009] 2 WLR 1257, [2009] Ch 313
Insolvency Act 1986 283(1) 306(1) 436
England and Wales
Cited – Sudeley v Attorney-General HL 1897
The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked . .
Cited – Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts HL 14-Mar-1921
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The . .
Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .
Principal judgment – Raymond Saul and Co (A Firm) v Holden and Another ChD 16-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.
Updated: 04 December 2022; Ref: scu.277939
Simon Brown LJ
[2007] 1 WLR 2102
England and Wales
Updated: 04 December 2022; Ref: scu.263954
Warren J
[2006] BPIR 1263
England and Wales
Followed – Osborne v Cole 1999
A person who challenges a bankrupt’s trustee’s conduct under section 303 must show that the trustee is acting ‘in bad faith or so perversely that no trustee properly advised or properly instructing himself could so have acted, alternatively if he . .
Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 December 2022; Ref: scu.262984
A person who challenges a bankrupt’s trustee’s conduct under section 303 must show that the trustee is acting ‘in bad faith or so perversely that no trustee properly advised or properly instructing himself could so have acted, alternatively if he has acted fraudulently or in a manner so unreasonable and absurd that no reasonable trustee would have acted in that way’.
Registrar Baister
[1999] BPIR 251
England and Wales
Followed – Supperstone v Hurst (No 3) 2006
. .
Followed – Shepherd v Official Receiver CA 7-Jun-2007
renewed application for permission to appeal . .
Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 December 2022; Ref: scu.262983
Austlii (High Court of Australia) Lien – Equitable – Contract for provision of work, labour and materials – Progress payments – Whether lien obtained over unfinished object – Whether dependent upon right to specific enforcement of contract.
Contract – Character – Work, labour and materials or sale of goods.
Bankruptcy – Preference – Contract for prefabrication of house – Risk with builder until practical completion – Property not to pass until full payment of price – Progress payments – Builder placed in liquidation before completion – Prior agreement for purchaser to pay for work done after last progress payment and take unfinished house – Whether preference – Companies Act 1961 (W.A.), section 293 – Bankruptcy Act 1966 (Cth), s. 122.
(1983) 149 CLR 639, [1983] HCA 7
Australia
Cited – Chattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 December 2022; Ref: scu.259719
Lord Mansfield
(1784) Cooke’s Bankrupt Laws 419
England and Wales
Cited – Ellis v M’Henry CCP 1871
A debt or liability arising in any country may be discharged by the laws of that country, and such a discharge, if it extinguishes the debt or liability, and does not merely interfere with the remedies or course of procedure to enforce it, will be . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.183530
Dispute between two secured creditors as to the priority of their claims to a fund held by company administrators.
[2021] EWHC 1047 (Ch)
England and Wales
Updated: 01 December 2022; Ref: scu.662211
These applications raise the question of whether the court has the power under section 236(3) of the IA 1986 to require persons resident in the EU to produce books and papers and an account of their dealings with a company being compulsorily wound up in England and Wales.
Sir Geoffrey Vos
[2020] EWHC 1433 (Ch)
England and Wales
Updated: 01 December 2022; Ref: scu.651208
Fancourt J
[2020] EWHC 1447 (Ch)
England and Wales
Updated: 01 December 2022; Ref: scu.651207