Application by a creditor or member alleging unfair harm by an administrator
| Author | Mark Watson-Gandy |
| Pages | 199-210 |
OBJECTIVE
A creditor or member may apply to the court to complain that the administrator is either acting or has acted in such a way as to unfairly harm his (and others’) interests as a member or creditor or proposes to act in such a way.
The court is given a wide discretion on how to deal with the order. It may grant relief or make any other order it feels appropriate, including making an interim order
The power, however, does not allow the court to impede or prevent the implementation of:
ƒ a company voluntary arrangement (CVA);
ƒ a compromise or arrangement sanctioned under Part 26 of the Companies
Act 2006;
ƒ a cross border merger;
ƒ the administrator’s proposals approved by a creditor’s meeting;
2974).
200 Corporate Insolvency Practice
ƒ revisions to the administrator’s proposals approved by a creditor’s meeting.
The court will also not review the reasonable decisions of an administrator to convert an administration into a creditor’s voluntary liquidation or reject a proof of debt, even if influenced by a mistake.
APPLICATION
The application is made by application notice using Form IAA. The application should be made on notice and the administrator should be named as respondent.
The application should set out the particulars of the allegations against the administrator and the relief sought.
COURT FEES
Where fresh proceedings need to be brought, a court fee of £280 is payable.
the application can be made as part of exisiting proceedings and the application is on notice to other parties, a court fee of £155 is payable.
EVIDENCE
The applicant should file a witness statement in support. This should address:
ƒ the capacity in which the applicant makes this application; ƒ the date the company was incorporated;
ƒ the registered office of the company;
ƒ the nominal share capital of the company;
ƒ the issued share capital of the company;
ƒ the objects of the company;
ƒ the date of the administration order;
ƒ the purpose of the administration;
ƒ the identity of the administrator;
ƒ full particulars of the wrongful or unfair conduct alleged against the administrator;
ƒ how the conduct of the administrator has unfairly harmed the applicant.
The witness statement should exhibit:
ƒ evidence of the applicant’s locus;
ƒ evidence of the administrator’s appointment;
ƒ evidence of the steps in issue;
ƒ any documents relevant to the issue;
ƒ any documents relevant to the facts upon which the issue arises.
SERVICE
The usual rule is that, subject to any other express provision, the application must be served at least 14 days before the date fixed for the hearing.
Service may be effected personally
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