Kellar v BBR Graphic Engineers (Yorks) Ltd: ChD 2002

The court was asked whether the district judge had applied the right test on an application to set aside a statutory demand because the conclusions of the district judge referred to a real prospect of success, the test used in CPR 24.2, rather than the test of genuine triable issue.
Held: The debate as to whether there is a distinction between the ‘genuine triable issue’ test for cross-claims and ‘real prospect of succeeding on the claim’ (i.e. on the cross-claims) involves a sterile and largely verbal question. Roger Kaye QC noted that the Insolvency Rules did not use the test of real prospect of success, and said: ‘It seems to me therefore to have been plainly intended that what is generally thought to have been a lower threshold than is now applicable to applications and Part 24 of the Civil Procedure Rule is to continue to apply to applications to set aside a statutory demand. This is no doubt because of the serious consequences that a statutory demand which is not set aside must have. It almost invariably and inevitably leads to the presentation of a bankruptcy petition and a bankruptcy order if the statutory demand is not set aside.’


Mr Roger Kaye QC


[2002] BPIR 544, [2001] 1 All ER (D) 416


England and Wales

Cited by:

CitedBryce 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 . .
CitedCollier v P and M J Wright (Holdings) Ltd CA 14-Dec-2007
Agreement for payment by joint debtor not contract
The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
Lists of cited by and citing cases may be incomplete.


Updated: 05 June 2022; Ref: scu.258442