Mond and Another v Hammond Suddards and Another: CA 15 Jun 1999

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
Bailii
Insolvency Act 1986 127
England and Wales
Cited by:
CitedThe 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 . .

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Updated: 07 June 2021; Ref: scu.83801