Neil John Mather and Mark Robert Fry (in their capacity as the liquidators of Imagine Furnishings Ltd) v Anthea Bovey
| Jurisdiction | England & Wales |
| Judge | Registrar Briggs |
| Judgment Date | 25 June 2014 |
| Judgment citation (vLex) | [2014] EWHC J0625-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No: 8448 of 2013 |
| Date | 25 June 2014 |
[2014] EWHC J0625-1
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Registrar Briggs
Claim No: 8448 of 2013
Mr M Haywood (instructed by Field Fisher) appeared on behalf of the Claimants.
Mr A McCluskey (instructed by Mishcon de Reya) appeared on behalf of the Defendant.
Approved Judgment
Wednesday, 25 June 2014
This is an application for sanction to bring proceedings which have already been issued. Accordingly sanction is sought retrospectively. Mr. Alec McCluskey acts on behalf of the defendant in the proceedings. His position is that the liquidator should not be entitled to sanction. To support that position he refers the court to the statement in to support the application for sanction provided by the liquidator. He says that the supporting evidence is wanting in several different respects. The first basis is that the evidence of Mr. Fry fails to explain properly the reasons why sanction to bring the proceedings was not obtained prior to issue. It follows that paragraph 13 of the evidence in support of the application is not sufficient as it simply states that the failure to seek sanction was due to some inadvertence.
That leads on to the second point advanced by Mr McCluskey, which is that Mr Fry does not state in his witness statement the reasons for the delay between realising the inadvertence and the making of this application. The time period or temporal issue is also reflected in his submissions that there was a period of time, after 2010 and the issue of proceedings in 2013 –when correspondence was flowed between the liquidator and the defendant, whereby the liquidator could easily have gone to the creditors and sought sanction. As a result of a failure to set out in the supporting evidence the reason the liquidator did not seek sanction from the creditors during this period he should not be entitled to sanction now.
Mr McCluskey also says that there has been a lack of candour on the part of the liquidator. I confess to having been troubled by this submission as it was appeared both opportunistic and more importantly was based on thin evidence which had not been tested. Nevertheless the submission was advanced on the basis that Mr Fry has estimated the costs of the proceedings and set that out in his witness statement. The estimated costs are said to be £450,000. I understand the submission is that this figure is deliberately inflated to somehow persuade the court that sanction should be granted. For my part the estimated costs would not be a factor or material factor in persuading me to grant sanction. In any event the sum is not startling for a case that is going to run for 4 days and is a company action and a liquidator action where the claim runs to millions of pounds. But what has not been said, says Mr McCluskey, is that the assets of the defendant which have been disclosed to the liquidator total no more than about £200,000. That is information which the court should have received when considering an application for sanction or the creditors should have received if a meeting of creditors had been called.. Mr McCluskey says that there is no evidence given by Mr Fry that he has informed the creditors of those two figures, namely the assets of the defendant and the costs of the action. That does seem to me to be a failure on behalf of the liquidator. However, Mr Haywood forcefully says that, as a matter of principle, it is not the sort of thing that should go in a court document and be available to the public at large, because that could breach some etiquette, or at least some information which had been passed to the liquidator in a confidential manner, and it would be wrong in principle to broadcast the assets of a defendant to the world at large. Mr Haywood for the liquidator submits that in any event there has been no investigation by the liquidator into the...
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