Boaler had brought unsuccessful proceedings in the Lord Mayor’s Court against a company, and was ordered to pay its costs. When he failed to pay them, an order of commitment was made against him. He applied for certiorari, alleging, inter alia, that the proceedings had been brought against the company without leave, when it was in liquidation, and that therefore all the proceedings, including the order of commitment, were invalid.
Held: The argument of want of jurisdiction was expressly negatived. The absence of a required consent to an action did not vitiate it where the defect could be cured.
Wright J said: ‘Another point which the applicant made was this. The company in question was in liquidation, and he says that the proceedings could not be continued. That affords no ground for granting a certiorari. It was a bad plea at common law that a compulsory winding up was in progress. The provision applicable to such a case is s87 of the Companies Act 1862 (25 and 26 Vict. c. 89), by which, ‘When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with or commenced against the company except with the leave of the Court, and subject to such terms as the Court may impose.’ That section has always in practice been worked out by applying to stay the proceedings, and further it does not apply to the case of a voluntary liquidation, the provisions applicable to which are contained in s138, and under that section the stay is discretionary. A certiorari can only issue where there is a want of jurisdiction.’
Judges:
Wright J
Citations:
[1893] 2 QB 146, [1893] UKLawRpKQB 108
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Magistrates
Updated: 12 October 2022; Ref: scu.567274