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[2020] WLR(D) 134

Chancery Division

Bell and another v Ide and others

[2020] EWHC 230 (Ch)

2020 Feb 4; 12

Judge Paul Matthews sitting as a High Court judge

Practice— Bankruptcy— Application— Service or delivery— Date originally fixed for hearing of application vacated and later date fixed— Application served less 14 days before date originally fixed but more than 14 days before later date— Whether service compliant with rule requiring service of application at least 14 days before date fixed for hearing— Insolvency (England and Wales) Rules 2016 (SI 2016/1024), r 12.9(3)

The joint trustees in bankruptcy issued an originating application against the bankrupt and five other respondents in respect of payments made by or to them. The application notice was endorsed with a hearing date of 9 July 2019. The trustees subsequently made an ordinary application seeking, inter alia, to vacate the hearing date. That application was granted and a new date fixed for 15 October 2019. Notice of the new hearing and the originating application, as endorsed by the court, were served on the fourth and fifth respondents in September 2019, which was the first indication that they had had of the originating application. They applied for an order striking out the originating application as not having been served in compliance with rule 12.9(3) of the Insolvency (England and Wales) Rules 2016, which required that a sealed copy of the application be served at least 14 days before the date fixed for its hearing, which the fourth and fifth respondents argued was 9 July 2019. In addition the application sought the strike out of a preference claim against the fourth respondent.

On the application—

Held, application granted in part. On a true construction of rule 12.9(3) of the Insolvency (England and Wales) Rules 2016, the 14-day period referred to was to be calculated by reference to the hearing that actually went ahead, rather than to the date endorsed on the application notice, if that was different. Since it was agreed that a sealed copy of the application notice had been served more than 14 days before the hearing on 15 October 2019, there had been no failure to comply with the rule 12.9(3). However, those parts of the points of claim making a preference claim against the fourth respondent would be struck out on the basis that they disclosed no reasonable grounds for bringing the claim (paras 19, 43, 49).

In re HS Works Ltd [2018] EWHC 1405 (Ch) not followed.

Jessica Powers (instructed by Isadore Goldman) for the fourth and fifth respondents

Steven Fennell (instructed by Hewlett Swanson) for the joint trustees.

The other respondents did not appear and were not represented

Sarah Addenbrooke, Barrister