Davy v Pickering and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Lewison,Lord Justice David Richards |
| Judgment Date | 24 January 2017 |
| Neutral Citation | [2017] EWCA Civ 30 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2017 |
Company - Register - Restoration to register - Company restored to Register of Companies after being struck off - Third party seeking direction preventing limitation period from running while company struck off so as to enable him to bring claim - Proper test for granting direction - Whether appropriate to give direction sought -
The defendant company was struck off the Register of Companies and dissolved pursuant to section 1003 of the Companies Act 2006F1. The claimant, who alleged that he had a claim for damages against the company arising from negligent investment advice given prior to its dissolution, applied under section 1029(1) of the 2006 Act for the company to be restored to the register. The court made the order sought. At an adjourned hearing the claimant sought a direction that the period during which the company had been struck off and dissolved was not to count for limitation purposes, relying on the court’s power under section 1032(3) to give “such directions and make such provisions as seems just for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved or struck off the register”. The judge made the direction sought, finding that there had been a small window of opportunity in which the claimant might have established the merits of his claim if the company had not been struck off and dissolved. The company, its sole director and its principal shareholders appealed against the making of the direction.
On the appeal—
Held, allowing the appeal, that the making of a direction, pursuant to section 1032(3) of the Companies Act 2006, that the period during which a company had been struck off or dissolved was not to count for limitation purposes required the applicant to show a clear causal link between the company’s dissolution and the applicant’s failure to bring proceedings within the applicable limitation period; that the test was whether the applicant would probably have issued proceedings against the company within the limitation period if the company had not been dissolved; that, therefore, the judge had set the bar too low, since a window of opportunity in which proceedings might have been issued was an insufficient basis for a direction under section 1032(3); that, on the facts found by the judge, the claimant had not satisfied the test; and that, accordingly, the direction should not have been made (post, paras 51, 60–63, 67, 72–73, 76, 77, 78).
The following cases are referred to in the judgment of David Richards LJ:
Barclays Bank plc (trading as Barclays Global Payment Acceptance) v Registrar of Companies
County Leasing Asset Management Ltd v Hawkes
Kenyon (Donald) Ltd, In re [
Lindsay Bowman Ltd, In re [
Morris v Harris [
Regent Leisuretime Ltd v NatWest Finance Ltd (formerly County NatWest Ltd)
Tyman’s Ltd v Craven [
Whitbread (Hotels) Ltd v Walkmore (95) Ltd
The following additional cases were cited in argument:
Huntington Poultry Ltd, In re [
Peaktone Ltd v Jodrell
The following additional cases, although not cited, were referred to in the skeleton arguments:
City of Westminster Assurance Co Ltd v Registrar of Companies [
Cornish Manures Ltd, In re [
London & Caledonian Marine Insurance Co, In re (
MacPherson v European Strategic Bureau Ltd [
Pinto Silver Mining Co, In re (
Progress Property Co Ltd v Moore
Russell v Wakefield Waterworks Co (
Russian and English Bank and Florance Montefiore Guedalla v Baring Brothers & Co Ltd [
Stanhope Pension Trust Ltd v Registrar of Companies [
APPEAL from Judge Keyser QC sitting as a judge of the Chancery Division in Cardiff
By a Part 8 claim form the claimant, Graham Frank Davy, applied under section 1029(1) of the Companies Act 2006 for an order for the restoration to the Register of Companies of Heather Moor & Edgecomb Ltd, a company which had been struck off and dissolved pursuant to section 1003 of the 2006 Act, and directions under section 1032(3), in particular a direction that the period during which the company had been struck off was not to count for the purposes of the application of the Limitation Act 1980 to a claim which the claimant had brought against the company for negligent advice given prior to the company’s striking off. The defendants to the claim were Brian Michael Pickering, Ann Dolores Pickering (together the principal shareholders of the company), the Registrar of Companies and the company. On 1 July 2014 District Judge James made an order for the restoration of the company to the register, but adjourned consideration of the directions to be made. Upon restoration the company was given the new name 1000654 Ltd, as its former name was no longer available. By a decision dated 19 February 2015 Judge Keyser QC, sitting as a judge of the Chancery Division at the Cardiff District Registry [2015] 2 BCLC 116, granted the direction sought, finding that there had been a “small window of opportunity” in which the claimant might have established the merits of his claim.
By an appellant’s notice dated 1 May 2015, and with the permission of the Court of Appeal (Lewison LJ) dated 13 July 2015, the principal shareholders and the company appealed on the grounds, inter alia, that (1), when looking to the express statutory purpose of a direction under section 1032(3) of the 2006 Act, and what an applicant had to show in that respect before the court could consider the justice of giving a particular direction, the judge had erred in holding that the relevant question was whether the applicant had been deprived of the opportunity of bringing proceedings or presenting a winding up petition, and the question was, rather, whether the applicant had changed his position by reasonably abstaining from taking such steps as a result of the company’s dissolution; and (2) the direction should not put the applicant in a substantially different position from that in which he would have been if the company had not been struck off the register.
The facts are stated in the judgment of David Richards LJ, post, paras 3–24.
Guy Adams (instructed by
Seb Oram (instructed by
The Registrar of Companies did not appear and was not represented.
The court took time for consideration.
24 January 2017. The following judgments were handed down.
DAVID RICHARDS LJ
Introduction1 This appeal concerns the directions and provisions the court may make when restoring a company to the Register of Companies. The power to do so arises under section 1032(3) of the Companies Act 2006 whereby the court “may give such directions and make such provisions as seems just for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved or struck off the register”. A direction may prevent a limitation period from running during all or part of the period in which the company was dissolved. This is the second case in a year in which this court has considered such a direction. In County Leasing Asset Management Ltd v Hawkes [2016] 2 BCLC 427 (“County Leasing”), the direction had been made at first instance in favour of the company while, in the present case, it was made in favour of a claimant against the company. County Leasing was decided after the order was made in the present case.
2 The order under appeal was made by Judge Keyser QC, sitting as a judge of the Chancery Division [2015] 2 BCLC 116. Heather Moor & Edgecomb Ltd (“the company”) had been voluntarily struck off the Register of Companies on the application of its sole director, Mrs Ann Pickering, the second appellant. It was restored to the register by an order of District Judge James on the application of Graham Frank Davy, the respondent to this appeal, but the district judge adjourned consideration of the directions and provisions, if any, to be made under section 1032(3). On Mr Davy’s application, opposed by the company and its principal shareholders, Mr and Mrs Pickering, (together, the appellants), the judge gave two directions:
The petition direction does not, by the terms of the order, come into effect until this appeal is determined.The facts“(1) The period between 20 March 2012 (being the date of the striking off of the company) and 1 July 2014 (being the date of the restoration order) is not to count for the purposes of any enactment, including the Limitation Act 1980, as to the time within which proceedings against the company must be brought by the claimant [the limitation direction];
“(2) If the claimant shall petition for the winding up of the company within 14 days from the date that this paragraph comes into effect, the petition shall be deemed to have been presented on 20 March 2012 [the petition direction] …”
3 The company was formed in 1971 and at all relevant times until 2010 its only directors were Mr and Mrs Pickering. They, together with the corporate...
To continue reading
Request your trial
-
Housemaker Services Ltd v Huw Cole and Another
...director and shareholder would have instituted proceedings before they became statute barred. The appeal was therefore allowed. 27 Pickering v Davy concerned a company carrying on business as an independent financial adviser. It had been voluntarily struck off the register on the applicat......
-
Tradition Financial Services Ltd v Bilta (UK) Ltd and Others
...a matter of speculation or assertion: it is a question of evidence, to be decided by the court on the balance of probabilities: Davy v Pickering [2017] EWCA Civ 30, [2017] Bus LR 1239 at [60] and 147 If the company can show that it is probable that, but for the dissolution, it would have ......
-
Upper Tribunal (Immigration and asylum chamber), 2021-09-28, HU/18368/2019
...Sponsor to the Appellant on an ongoing basis. Applying this factual matrix to the relevant case-law including, but not limited to Rai [2017] EWCA Civ 30, I find that there is family life for the purposes of Article I turn then to the question of proportionality under Article 8(2). Applying ......
-
Upper Tribunal (Immigration and asylum chamber), 2023-02-14, IA/13075/2021
...of appeal 3. In grounds of appeal the appellant argued that the FtT erred by failing to apply the correct test as to dependency in Rai [2017] EWCA Civ 30 of “real, effective, committed support” and instead looking at Kugathas in terms of over and above the normal family ties (Article Permis......
-
Fake News: A Legal Perspective
...http://bit.ly/zuckerbergfakenews. Melissa Eddy, "German Court Refuses to Block Facebook Users from Reposting a Refugee's Selfie," N.Y. Times, March 8, 2017, at Compendium of U.S. Copyright Office Practices § 310.2 (3d ed. 2014). Karolina Andersdotter, "Alternative Facts and Fake News Verif......
-
"BECAUSE IT IS WRONG": AN ESSAY ON THE IMMORALITY AND ILLEGALITY OF THE ONLINE SERVICE CONTRACTS OF GOOGLE AND FACEBOOK.
...AND THE BUSINESS OF KEEPING US HOOKED (2017). (221) Id. at 8-9, 71 . (222) Claudia Dreifus, Why We Can't Look Away From Screens, N.Y. TIMES (Mar. 6, 2017), (223)220, at 80. (224) Tim Bradshaw & Hannah Kuchler, Smartphone addiction: big tech's balancing act on responsibility over revenue......
-
Textualism and the Fourteenth Amendment.
...const, amend. XIV, [section] 1. (95.) See Vivian Yee et al., Here's the Reality About Illegal Immigrants in the United States, N.Y. times (Mar. 6, 2017), https://nyti.ms/2mvaHOg (reporting that "the best estimates say" that there are eleven million illegal immigrants living in the United (9......
-
SECRECY CREEP.
...(203) Id. (204) Matt Apuzzo & Adam Goldman, After Spying on Muslims, New York Police Agree to Greater Oversight, N.Y. TIMES (Mar. 6. 2017), https://www.nytimes.com/2017/03/06/nyregion/nypd-spying-muslims-surveillance-lawsuit.html (205) CJ Ciaramella, Meet the Muslims Suing the Cops for ......
-
Due Process in Removal Proceedings After Thuraissigiam.
...see also Vivian Yee, Kenan Davis & Jugal K. Patel, Here's the Reality About Illegal Immigrants in the United States, N.Y. Times (Mar. 6, 2017), https://perma.cc/B6ZF-5BH5 (to locate, select "View the live page") (reporting that about 60% of the undocumented population has been in the co......