Tarn Insurance Services Ltd v Kirby & Ors [2009] EWCA Civ 19 (27 January 2009)

Tarn Insurance Services Ltd v Kirby & Ors [2009] EWCA Civ 19 (27 January 2009)

The Court of Appeal held that the judge was wrong to grant Mr Kirby relief from the sanction of debarment after clear and serious non-compliance with unless orders, as there was no sufficient or meritorious explanation or defence. However, the judge was correct to refuse summary judgment against Mr Rodriguez and Outtake, as there were factual disputes requiring trial.

Citation
[2009] EWCA Civ 19
Parties
Claimant/appellant: Tarn Insurance Services Limited (in administration); Defendant/respondent: Stephen Kirby; Defendant/respondent: Tony Bennett; Defendant/respondent: Stephen Hirst; Defendant/respondent: David Holden; Defendant/respondent: STS Insurance Services Limited; Defendant/respondent: Luxury Bathe Limited; Defendant/respondent: Get With It Limited; Defendant/respondent: Francisco Xavier Rodriguez-Purcet; Defendant/respondent: Outtake Limited
Jurisdiction
England and Wales
Judgment Date
27 January 2009
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal allowed in part and dismissed in part.
Legal Topics
Relief From Sanctions, Summary Judgment, Directors' Duties, Constructive Trusts, Freezing Orders, Default Judgment
Insolvency Company Law Civil Procedure Relief From Sanctions Summary Judgment Directors' Duties Constructive Trusts Freezing Orders +1 more

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Parties

Tarn Insurance Services Limited (in administration)

Claimant/appellant

Stephen Kirby

Defendant/respondent

Tony Bennett

Defendant/respondent

Stephen Hirst

Defendant/respondent

David Holden

Defendant/respondent

STS Insurance Services Limited

Defendant/respondent

Luxury Bathe Limited

Defendant/respondent

Get With It Limited

Defendant/respondent

Francisco Xavier Rodriguez-Purcet

Defendant/respondent

Outtake Limited

Defendant/respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether relief from sanction (debarment from defending) should have been granted to Mr Kirby after breach of unless order
  2. 2 Whether summary judgment should have been granted against Mr Rodriguez and Outtake
  3. 3 Whether the STS Agreement was entered into in breach of directors' fiduciary duties and is voidable

Ratio Decidendi

The Court of Appeal held that the judge was wrong to grant Mr Kirby relief from the sanction of debarment after clear and serious non-compliance with unless orders, as there was no sufficient or meritorious explanation or defence. However, the judge was correct to refuse summary judgment against Mr Rodriguez and Outtake, as there were factual disputes requiring trial.

Court Disposition

Appeal allowed in part and dismissed in part.

Orders

  • Paragraph 1 of the order of 2 July 2008 (granting Mr Kirby relief from sanction) set aside.
  • Refusal of summary judgment against Mr Rodriguez and Outtake affirmed.