Manolete Partners Plc V Hayward And Barrett Holdings Ltd & Ors

• Published date: 08 June 2021
• Subject Matter: Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy
• Law Firm: Moon Beever
• Author: Frances Coulson, Graham McPhie and James Latham

Manolete Partners Plc v Hayward And Barrett Holdings Ltd & Ors [2021] EWHC 1481 (Ch) represents something of a procedural set back for insolvency litigation.

The applicant, as assignee of various claims arising out of the liquidation of Blackwater Plant Ltd, issued an application using form IAA as provided for by r. 1.35 Insolvency (England and Wales) Rules 2016. The application included claims under various provisions of the Insolvency Act 1986 and claims for relief for misfeasance. The third and fourth respondents took the point that a claim in misfeasance made by anyone other than an office-holder under s. 212 IA 1986 had to be brought by claim form. They sought an unless order requiring the applicant to pay the additional issue fee that would have been payable had the claim been commenced under CPR Part 7.

Chief ICC Judge Briggs agreed. He held:

"49. As joint liquidators of Blackwater Mr Clark and Mr Renshaw [the liquidators] were able to issue insolvency proceedings using an Insolvency Application against the third and fourth Respondents.

50. As assignee of the transaction avoidance claims the Applicant can bring the proceedings against the third and fourth Respondent by way of an Insolvency Application.

51. Section 212 falls within Part IV of the Act. But for the assignment to the Applicant, the joint liquidators may use the section to bring the Blackwater Claims in their own name making use of the Insolvency Application procedure.

52. The Applicant is not a liquidator, official receiver, contributory or creditor. A distinction is to be drawn between an assignment of claims vested in the joint liquidators and capable of assignment, claims vested in Blackwater and capable of assignment by the joint liquidators and the office of liquidator. The office is not capable of assignment.

53. A Part 7 Claim should have been made to pursue the assigned Blackwater Claims."

He decided that the procedural defect could, however, be cured by ordering payment of the court fee for a Part 7 claim within 7 days of his handing down his judgment, which would put the applicant in the same position it would have been in if it had issued the company's claim using the appropriate (claim form)...