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.

If the reference had simply been to the application of the £250,000 to discharge the first defendant's debts (without mentioning the second defendant), since some of those debts were joined and severable it might have been argued that some of that figure incidentally reduced the debt of the second defendant, which was not what was provided for in the 2 August 2019 order and was not what the claimant intended.

The plain and obvious meaning of that clause is that the sum of £250,000 will first reduce or discharge the first defendant's debt; and only if that debt is discharged (i.e. extinguished) will the sum be applied to the second defendant's debt. There is no basis whatsoever on which that clause can be read as permitting the second defendant's debt to be reduced – still less, completely extinguished – while the first defendant remains indebted to the claimant.

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.

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.

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.

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.