Re Harlequin Management Services Ltd (Applicant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 16 May 2013 |
| Neutral Citation | [2013] EWHC 1926 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: 2989 of 2013 |
| Date | 16 May 2013 |
[2013] EWHC 1926 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Arnold
Claim No: 2989 of 2013
Mr Niall Mcculloch appeared on behalf of the Applicant
Approved Judgment
Thursday, 16 May 2013
This is an application by, firstly, Daniel Aimes and Carol Anne Aimes, who are the directors of Harlequin Management Services (South- East) Ltd ("the company"), and, secondly, Stephen Blandford Ryman and Anthony Davidson ("the administrators") for a declaration that the administrators were validly appointed as administrators of the company, under paragraph 22 of schedule B1 to the Insolvency Act 1986 on 3 May 2013. The application has been served, for reasons that will appear, upon the Financial Conduct Authority ("the FCA"), but the FCA has not appeared to oppose it.
The facts can be briefly stated. The company acted as an international property investment agency specialising in luxury resorts in the Caribbean. During the period 7 March to 7 July 2005 the company acted as an appointed representative of Presbury Financial Ltd. Accordingly, it was authorised to carry on activities regulated at that time by the Financial Services Authority ("the FSA") and now, since 1 April 2013, by the FCA.
In mid-April 2013 the company, having taken insolvency advice, instructed its solicitors to organise its entry into administration. Prior to filing a notice of intention to appoint administrators, the company's solicitors searched the FCA register and confirmed that the company had indeed been an appointed agent for the purposes of the Financial Services and Markets Act 2000. Quite properly, they therefore sought the FCA's consent to the appointment of administrators. That was done by an e-mail sent on 19 April 2013. On the same day, a representative of the FCA informed the company's solicitors by telephone that the consent of the FCA was not required. Relying upon that advice, on 22 April 2013 the company's solicitors filed notice of intention to appoint administrators at this court pursuant to paragraph 26 of schedule B1. The notice of intention was served upon the company.
The following day, 23 April 2013, the FCA sent an e-mail to the company's solicitors saying that the FCA had been incorrect to advise that its consent was not required, but attaching a letter of consent. On the same day, the company's solicitors filed the FCA's letter of consent at court. On 3 May 2013 Mr and Mrs Aimes filed a notice of appointment of the administrators pursuant to paragraph 29 of schedule B1.
The reason for the application is that it has occurred to the administrators that the validity of their appointment might be questioned on the ground that the FCA's consent was not filed at court at the same time as the notice of intention to appoint administrators.
As amended with effect from 1 April 2013, section 362A of the Financial Services and Markets Act 2000 provides as follows:
"(1) This section applies in relation to a company or a partnership of a kind described in section 362(1)(a) to (c).
"(2) An administrator of the company or partnership may not be appointed under a provision specified in subsection (2A) without the consent of the appropriate regulator.
"(2A) Those provisions are—
(a) paragraph 22 of Schedule B1 to the 1986 Act (including that paragraph as applied in relation to partnerships by order under section 420 of that Act);
(b) paragraph 23 of Schedule B1 to the 1989 Order (including that paragraph as applied in relation to partnerships by order under article 364 of that Order).
"(2B) 'The appropriate regulator' means—
(a) where the company or partnership is a PRA-regulated person, the PRA, and
(b) in any other case, the FCA.
"(3) Consent under subsection (2) —
(a) must be in writing, and
(b) must be filed with the court along with the notice of intention to appoint under paragraph 27 of Schedule B1 to the 1986 Act or paragraph 28 of Schedule B1 to the 1989 Order.
"(4) In a case where no notice of intention to appoint is required —
(a) subsection (3)(b) shall not apply, but
(b) consent under subsection (2) must accompany the notice of appointment filed under paragraph 29 of Schedule B1 to the 1986 Act or paragraph 30 of Schedule B1 to the 1989 Order."
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