Brigita Morina v Catherine Mairead McAleavey & Ors

Brigita Morina v Catherine Mairead McAleavey & Ors

The reference to 'a claim' in Section 423(3) Insolvency Act 1986 is not limited to claims with a realistic prospect of success or enforceability; it includes any claim or potential claim, regardless of merit. The focus is on the subjective intention of the transferor. Arguments seeking to limit Section 423 to claims with substantive merit or to exclude foreign sovereign claims on public policy grounds are incorrect in law and are struck out. Issue estoppel arises from the Deputy Master's prior decision on this point, precluding re-argument. The court's discretion under Section 423(2) is narrow and does not allow for a broad merits or policy-based inquiry at the remedy stage.

Parties
Claimant: Brigita Morina; Defendant: Catherine Mairead McAleavey; Defendant: William Jeremy Gordon; Defendant: Elena Nikolayevna Scherbakova; Defendant: Olga Vladimirovna Scherbakova; Defendant: Alexander Scherbakov; Defendant: AB (a child, acting by his litigation friend, Elena Buchen); Defendant: BC (a child, acting by her litigation friend, Elena Buchen)
Jurisdiction
England and Wales
Judgment Date
11 September 2024
Procedural Posture
Civil (chancery Division) / Judgment on Strike Out Application, Amendment Application, and Appeal
Outcome
Strike out application and amendment application both succeed in part; permission to appeal refused.
Legal Topics
Transactions at an Undervalue, Section 423 Insolvency Act 1986, Issue Estoppel, Case Management, Beneficial Ownership, Foreign Law Evidence
Insolvency Law Trusts and Estates Civil Procedure Transactions at an Undervalue Section 423 Insolvency Act 1986 Issue Estoppel Case Management Beneficial Ownership +1 more

Case Brief

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Parties

Brigita Morina

Claimant

Catherine Mairead McAleavey

Defendant

William Jeremy Gordon

Defendant

Elena Nikolayevna Scherbakova

Defendant

Olga Vladimirovna Scherbakova

Defendant

Alexander Scherbakov

Defendant

AB (a child, acting by his litigation friend, Elena Buchen)

Defendant

BC (a child, acting by her litigation friend, Elena Buchen)

Defendant

Procedural Posture

Civil (chancery Division) / Judgment on Strike Out Application, Amendment Application, and Appeal

Legal Issues

  1. 1 Whether a claim under Section 423 Insolvency Act 1986 must have a realistic prospect of success to qualify as a 'claim'
  2. 2 Whether certain pleadings should be struck out or refused permission to amend for lack of particularisation, legal merit, or public policy
  3. 3 Whether issue estoppel arises from previous case management decisions

Ratio Decidendi

The reference to 'a claim' in Section 423(3) Insolvency Act 1986 is not limited to claims with a realistic prospect of success or enforceability; it includes any claim or potential claim, regardless of merit. The focus is on the subjective intention of the transferor. Arguments seeking to limit Section 423 to claims with substantive merit or to exclude foreign sovereign claims on public policy grounds are incorrect in law and are struck out. Issue estoppel arises from the Deputy Master's prior decision on this point, precluding re-argument. The court's discretion under Section 423(2) is narrow and does not allow for a broad merits or policy-based inquiry at the remedy stage.

Court Disposition

Strike out application and amendment application both succeed in part; permission to appeal refused.

Orders

  • Striking out the first part of Paragraph 20A.9 and Paragraph 20A.15 of the Re-Re-Amended Reply and Defence to Counterclaim.
  • Permission to amend refused for yellow text in Paragraph 20A.16.4, Paragraph 20B.6, and Paragraphs 20E.2–20E.5.