Secretary of State for Business Innovation and Skills v Mr Aidan Chan Edmund Earley
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 30 June 2011 |
| Neutral Citation | [2011] EWHC 4084 (Ch) |
| Docket Number | Case No: 5839 of 2010 |
| Court | Chancery Division |
| Date | 30 June 2011 |
[2011] EWHC 4084 (Comp)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Newey
Case No: 5839 of 2010
Mr Mark Cunningham QC (Instructed by Howes Percival LLP) appeared on behalf of the Claimant
The Defendant appeared in person
Approved Judgment
I have before me an application by the Secretary of State for Business, Innovation and Skills for leave to bring proceedings under the Company Directors Disqualification Act 1986 out of time against Mr Aidan Earley.
The intended disqualification proceedings relate to three companies of which Mr Earley is said to have been a director. All three companies went into members' voluntary liquidation on 26 November 2007 and, subsequently, into creditors' voluntary liquidation on 17 December 2008.
The application to bring disqualification proceedings out of time arises in a somewhat curious way and as a consequence of the fact that there were successively the members' voluntary liquidations and subsequently creditors' voluntary liquidations.
In May of last year the Insolvency Service wrote to Mr Earley giving notice pursuant to s.16 of the Companies Directors Disqualification Act of its intention to bring proceedings against him. The Insolvency Service referred in that letter to the successive liquidations, and it was explained that the Secretary of State would be seeking an order that the date of the creditors' voluntary liquidations should be used for the purposes of determining the time within which proceedings fell to be brought, but, alternatively, would seek permission to bring proceedings out of time were the date of the members' voluntary liquidations the relevant one.
There followed on 27 July, after some intervening correspondence, a letter from Howes Percival, who had become the Secretary of State's solicitors, to Mr Earley enclosing, it is said by way of service, a disqualification claim form, the evidence in support of that and also an application dated 19 July for permission to bring proceedings out of time. The intention at that stage I gather was that substantive disqualification proceedings should be issued, but in case the date of the members' voluntary liquidations was in fact the relevant one, there should in tandem with that be an application for permission to bring proceedings out of time. In the event, I was told by Mr Mark Cunningham QC, who appears for the Secretary of State, that the substantive claim form was sent back marked "Fee cancelled," but the application for permission to proceed out of time, although not in the form prescribed in the practice direction, was issued and given a claim number. It is that application which is before me today.
Earlier this year, following a hearing before Registrar Barber, the Secretary of State sought further advice as to whether the date of the members' voluntary liquidations was indeed the relevant one and, having obtained such advice, Howes Percival indicated that the Secretary of State had changed his position and was now relying on the date of the creditors' voluntary liquidations as the key date. Howes Percival wrote a letter to Mr Earley's solicitors indicating that change of position on 18 February, and a letter was sent to the court to similar effect on 1 March.
The position before me today is that, as foreshadowed in those letters, the Secretary of State says that the date from which the two-year period ran was the date of the creditors' voluntary liquidations, with the consequence that the time for bringing disqualification proceedings did not expire until the middle of December last year. Mr Cunningham has explained that it is not part of the Secretary of State's case that the companies at issue were in fact insolvent as at the date that they went into members' voluntary liquidation, and Mr Earley, who has appeared before me in person, has himself confirmed that so far as he was concerned the companies were solvent as at that date. On that basis, as matters now appear there can be no question of the date of the members' voluntary liquidations being the relevant date for the purposes of s.7. Section 6(2) of the Company Directors Disqualification Act states that a company becomes insolvent if, among other things, it goes...
To continue reading
Request your trial