Merrygold (Liquidator) v Bates & Anor

Merrygold (Liquidator) v Bates & Anor

Service on Mrs Bates in Germany, though formally defective under the Service Regulation, was effective under IR 7.55 as no substantial injustice was caused and Mrs Bates had actual notice and opportunity to respond. Further, by her conduct, Mrs Bates waived her right to challenge service. The application to set aside service was dismissed.

Parties
Applicant: David Merrygold (Liquidator); Respondent: Philip Bates; Respondent: Nicole Bates
Jurisdiction
England and Wales
Judgment Date
11 November 2009
Procedural Posture
Insolvency Application / Interlocutory Application to Set Aside Service
Outcome
application dismissed
Legal Topics
Service of Process, Insolvency Proceedings, Jurisdiction, Misfeasance, Breach of Fiduciary Duty
Insolvency Law Civil Procedure Service of Process Insolvency Proceedings Jurisdiction Misfeasance Breach of Fiduciary Duty

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Parties

David Merrygold (Liquidator)

Applicant

Philip Bates

Respondent

Nicole Bates

Respondent

Procedural Posture

Insolvency Application / Interlocutory Application to Set Aside Service

Legal Issues

  1. 1 Whether service of proceedings on Mrs Bates in Germany was effective under the Insolvency Rules and/or the Service Regulation
  2. 2 Whether the order for service should be set aside for material non-disclosure or procedural irregularity
  3. 3 Whether Mrs Bates waived her right to challenge service

Ratio Decidendi

Service on Mrs Bates in Germany, though formally defective under the Service Regulation, was effective under IR 7.55 as no substantial injustice was caused and Mrs Bates had actual notice and opportunity to respond. Further, by her conduct, Mrs Bates waived her right to challenge service. The application to set aside service was dismissed.

Court Disposition

application dismissed

Orders

  • Mrs Bates's application to set aside service is dismissed
  • Service upon Mrs Bates in January 2009 declared effective under IR 7.55