Parkinson Engineering Services Plc v Swan & Anor [2009] EWCA Civ 1366 (21 December 2009)

Parkinson Engineering Services Plc v Swan & Anor [2009] EWCA Civ 1366 (21 December 2009)

The substitution of the liquidator as claimant was necessary because the original claim could not be properly carried on without it, and the cause of action remained identical; the judge had jurisdiction and properly exercised discretion to permit the amendment and grant leave under section 212(4), despite delay and procedural errors.

Citation
[2009] EWCA Civ 1366
Parties
Claimant/respondent: Parkinson Engineering Services plc (in liquidation); Defendant/appellant: Julie Swan; Defendant/appellant: Peter Yeldon
Jurisdiction
England and Wales
Judgment Date
21 December 2009
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Amendment of Pleadings, Limitation of Actions, Substitution of Parties, Insolvency Act 1986 Section 212, CPR Rule 19.5
Civil Procedure Insolvency Law Amendment of Pleadings Limitation of Actions Substitution of Parties Insolvency Act 1986 Section 212 CPR Rule 19.5

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Parties

Parkinson Engineering Services plc (in liquidation)

Claimant/respondent

Julie Swan

Defendant/appellant

Peter Yeldon

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the court had power to permit substitution of the liquidator as claimant after expiry of the limitation period under CPR rule 19.5 and section 35 of the Limitation Act 1980.
  2. 2 Whether leave should have been granted under section 212(4) of the Insolvency Act 1986 to proceed against the former administrators despite their release.
  3. 3 Whether the judge properly exercised discretion in permitting the amendment and granting leave.

Ratio Decidendi

The substitution of the liquidator as claimant was necessary because the original claim could not be properly carried on without it, and the cause of action remained identical; the judge had jurisdiction and properly exercised discretion to permit the amendment and grant leave under section 212(4), despite delay and procedural errors.

Court Disposition

Appeal dismissed

Orders

  • Permission to substitute the liquidator as claimant granted
  • Leave under section 212(4) of the Insolvency Act 1986 to proceed against the former administrators granted