Smurthwaite v Simpson-Smith & Anor [2006] EWCA Civ 1183 (25 July 2006)

Smurthwaite v Simpson-Smith & Anor [2006] EWCA Civ 1183 (25 July 2006)

The order for costs against Mr Smurthwaite for the specific disclosure application was made on a false basis, as subsequent affidavits revealed relevant documents had not been disclosed at the time of the hearing; thus, the costs order must be set aside. Mr Mond's conduct in admitting Miss Williams' claim as a creditor for voting purposes in the IVA fell below the standard expected of a reasonable insolvency practitioner, justifying a personal costs order against him for 50% of the relevant costs. The review application under section 375 was misconceived as the relief sought had already been achieved by subsequent disclosure.

Citation
[2006] EWCA Civ 1183
Parties
Claimant/appellant: Jolyon Smurthwaite; Defendant/respondent: Robin Simpson-Smith; Defendant/respondent/claimant/appellant: David Emmanuel Merton Mond
Jurisdiction
England and Wales
Judgment Date
25 July 2006
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Three Consolidated Appeals From High Court (chancery Division) Orders
Outcome
Appeal on B5/2005/0033 allowed in part; appeals on B5/2005/0541 and B5/2005/1878 dismissed.
Legal Topics
Individual Voluntary Arrangement (iva), Costs Orders, Disclosure of Documents, Creditor Voting Rights, Professional Conduct of Insolvency Practitioners
Insolvency Bankruptcy Civil Procedure Individual Voluntary Arrangement (iva) Costs Orders Disclosure of Documents Creditor Voting Rights Professional Conduct of Insolvency Practitioners

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Parties

Jolyon Smurthwaite

Claimant/appellant

Robin Simpson-Smith

Defendant/respondent

David Emmanuel Merton Mond

Defendant/respondent/claimant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Three Consolidated Appeals From High Court (chancery Division) Orders

Legal Issues

  1. 1 Whether the costs order against Mr Smurthwaite for the specific disclosure application should stand in light of subsequent disclosure
  2. 2 Whether the conduct of Mr Mond as insolvency practitioner in admitting Miss Williams' claim as a creditor was below professional standards
  3. 3 Whether the review application under section 375 of the Insolvency Act 1986 was misconceived

Ratio Decidendi

The order for costs against Mr Smurthwaite for the specific disclosure application was made on a false basis, as subsequent affidavits revealed relevant documents had not been disclosed at the time of the hearing; thus, the costs order must be set aside. Mr Mond's conduct in admitting Miss Williams' claim as a creditor for voting purposes in the IVA fell below the standard expected of a reasonable insolvency practitioner, justifying a personal costs order against him for 50% of the relevant costs. The review application under section 375 was misconceived as the relief sought had already been achieved by subsequent disclosure.

Court Disposition

Appeal on B5/2005/0033 allowed in part; appeals on B5/2005/0541 and B5/2005/1878 dismissed.

Orders

  • Order for costs of £6,000 against Mr Smurthwaite (from 13 December 2004) set aside; no order for costs on that application.
  • Order of 25 February 2005 (Laddie J) stands; review application dismissed.