The court was asked whether proceedings under section 212 brought by the liquidator against a former director of the company were barred by limitation, having been brought just within 6 years after the resolution for creditors’ voluntary liquidation, but more than 6 years after the last date on which any breach of duty relied on was alleged to have been committed.
Held: The cause of action accrued on the date of the breaches, not when the company went into liquidation, so that the claim was brought too late. Blackburne J said: ‘In my judgment, Mr Wilson’s submissions [for the liquidator] on this point do not pay sufficient regard to the significance of the fact, made clear by the authorities, that section 212 is procedural in nature. The true significance of that fact is that the section merely provides an alternative means, in terms of procedure, of enabling the company, to which the defaulting director’s duty was owed, to obtain recompense from the director for his breach of duty. If the liquidator chooses to name himself as the formal claimant in lieu of the company, his claim is by application, or (as appropriate) originating application, in the liquidation rather than by a claim form under CPR Part 7. The procedure is not available if it is intended to make someone other than a director (or other person falling within section 212) liable for the wrong to the company, for example a claim against a non-director (along with a director) for having conspired to harm the company; in such a case or where other claims not within section 212 are brought against a director, for example a straightforward claim in debt, the claim must be brought by the company. In each case, however, in substance the claimant is the company; the relief which is granted under section 212(3) is for the repayment, restoration or accounting (to the company) of the money or property of the company or for a contribution to be made ‘to the company’s assets by way of compensation’ for the wrong in question. … there is only a single cause of action, that of the company. All that section 212 does is give to the liquidator, if he wishes, the right to bring the claim in his own name.’
 EWHC 1433 (Ch),  Bus LR 146
England and Wales
Cited – Parkinson Engineering Services Plc v Swan and Another CA 21-Dec-2009
The court considered the scope of the court’s power to permit an amendment as regards parties outside a limitation period. The amendment in this instance was to substitute one claimant in place of another, namely the liquidator of a company instead . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 March 2022; Ref: scu.253764