Michael Wilson & Partners Ltd v Sinclair & Ors [2021] EWCA Civ 505 (16 April 2021)

Michael Wilson & Partners Ltd v Sinclair & Ors [2021] EWCA Civ 505 (16 April 2021)

The appeal could not proceed because, following the bankruptcy of Mr Sinclair, s. 285(3)(a) and s. 346(1) of the Insolvency Act 1986 precluded MWP from pursuing or retaining the benefit of the TPDO, as the attachment was not completed before bankruptcy and there was no reasonable prospect of the Court exercising its discretion under s. 346(6) in MWP's favour. The appeal had become academic and was dismissed.

Citation
[2021] EWCA Civ 505
Parties
Claimant and Appellant: Michael Wilson & Partners Ltd; Defendant and Respondent: Thomas Ian Sinclair; Defendant and Respondent: Sokol Holdings Inc.; Defendant and Respondent: Eagle Point Investments Ltd; Defendant and Respondent: The Butterfield Bank (Bahamas) Ltd; Third Party and Respondent: John Forster Emmott
Jurisdiction
England and Wales
Judgment Date
16 April 2021
Procedural Posture
Civil Appeal / Appeal From High Court to Court of Appeal
Outcome
Appeal dismissed as academic due to bankruptcy of Mr Sinclair; no order on the substantive appeal.
Legal Topics
Third Party Debt Orders, Bankruptcy, Enforcement of Judgments, Attachment of Debts, Pari Passu Principle
Insolvency Law Civil Procedure Third Party Debt Orders Bankruptcy Enforcement of Judgments Attachment of Debts Pari Passu Principle

Case Brief

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Parties

Michael Wilson & Partners Ltd

Claimant and Appellant

Thomas Ian Sinclair

Defendant and Respondent

Sokol Holdings Inc.

Defendant and Respondent

Eagle Point Investments Ltd

Defendant and Respondent

The Butterfield Bank (Bahamas) Ltd

Defendant and Respondent

John Forster Emmott

Third Party and Respondent

Procedural Posture

Civil Appeal / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether a loan repayable 30 days after demand is a 'debt due or accruing due' for the purposes of a third party debt order under CPR r 72.2(1)
  2. 2 Whether the making of a bankruptcy order against a judgment debtor precludes a creditor from pursuing or retaining the benefit of a third party debt order under s. 285(3)(a) and s. 346(1) of the Insolvency Act 1986
  3. 3 Whether the Court should exercise its discretion under s. 346(6) IA 1986 to allow the creditor to retain the benefit of the attachment

Ratio Decidendi

The appeal could not proceed because, following the bankruptcy of Mr Sinclair, s. 285(3)(a) and s. 346(1) of the Insolvency Act 1986 precluded MWP from pursuing or retaining the benefit of the TPDO, as the attachment was not completed before bankruptcy and there was no reasonable prospect of the Court exercising its discretion under s. 346(6) in MWP's favour. The appeal had become academic and was dismissed.

Court Disposition

Appeal dismissed as academic due to bankruptcy of Mr Sinclair; no order on the substantive appeal.

Orders

  • Interim third party debt order discharged
  • No continuation of interim TPDO