Financial Disputes in UK Law

I am far from saying that in the ordinary case that is not a most weighty consideration. But here this is a company which it has never been suggested on either side has any assets at all except this one claim. Therefore I do not think that delay is a matter which I should have given much weight to here.

Conversely, where there is a valid debt and the correct formalities have been complied with, generally that will lead to the making of an order. A petition in those circumstances will generally only be adjourned for a short time, if there is a reasonable prospect of the debtor in effect coming to terms with the petitioner, by paying the debt and thus removing the petition—see Re: Gilmartin [1989], 1 WLR 513.

Earlier cases as to when petitions have been adjourned or dismissed under such a discretionary power are of no re-assistance, except in drawing to my attention the fact that I have a discretionary power. It is the facts of each case, which indicate how, if at all, the discretion should be exercised.

First he says that a claim for the purposes of Article 6(1) must be one which can properly be brought in the domestic court. The claim against the bankrupt was time-barred but the ECJ held that nevertheless the claim against the guarantor could proceed under Article 6 (1) which was not affected by a procedural bar contained in a national provision.

Even if he had been minded to rescind the bankruptcy order he should have considered how to protect the interests of the other members of the same class of unsecured creditor whether by a conditional order, the condition being that they should be paid in full or, as in Fitch v. Official Receiver, restoration of the original petition so that one of them, if remaining unpaid, might obtain an order for substitution and pursue the petition for a further bankruptcy order.

It seems to me that the gap in that argument is that it deals fairly with the position as between Mr Atherton, Mrs Atherton and maybe also the petitioning creditor, but it is entirely irrelevant to the position of the trustee in bankruptcy whose costs have been properly incurred, subject of course to being quantified in the appropriate amount, and is entitled, as in Mellor v Mellor, to have security for the discharge of his costs.

There is no doubt that the general rule in CPR 44.3, that the losing party should pay the costs of the successful party in litigation applies with added force in the context of winding up petitions.