Financial Disputes in UK Law

I am far from saying that in the ordinary case that is not a most weighty consideration. If the company is trading — or even If it is not trading, if It has assets — these are things which may melt away while the matter is delayed, and the petitioning creditor is not to be put off and see the only security for his debt vanish into thin air, either In litigation, good, bad or indifferent, or in some other way.

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. As a general proposition, I would accept this, although Mr Samek referred us to a recent decision of the ECJ in Reisch Montage AG v Kiesel Baumaschinen Handels GMbH ( Case C-103/05), which casts some doubt upon this proposition.

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.

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.