Wilton UK Ltd v Shuttleworth & Ors [2017] EWHC 2195 (Ch) (04 September 2017)

Wilton UK Ltd v Shuttleworth & Ors [2017] EWHC 2195 (Ch) (04 September 2017)

The failure to obtain court permission prior to service of the claim form in a statutory derivative action under Companies Act 2006 is a breach of statute, not merely a procedural error under the CPR. CPR 3.10 does not apply. However, the statutory regime and legislative history do not mandate that proceedings are a nullity for want of permission. The court retains jurisdiction to grant retrospective permission to continue the claim and validate service, subject to further hearing on discretion.

Citation
[2017] EWHC 2195 (Ch)
Parties
Claimant: Wilton UK Limited; Defendant: John Michael Shuttleworth; Defendant: Graham Smith; Defendant: Harry James Banks; Defendant: The Banks Group Limited; Defendant: Banks Mount Oswald Limited
Jurisdiction
England and Wales
Judgment Date
04 September 2017
Procedural Posture
Derivative Claim Under Companies Act 2006 / Preliminary Issue Judgment on Validity of Service and Retrospective Permission
Outcome
Service not automatically invalid; court may retrospectively grant permission to continue and validate service, subject to further hearing.
Legal Topics
Derivative Claims, Service of Claim Form, Retrospective Permission, Statutory Interpretation
Company Law Civil Procedure Derivative Claims Service of Claim Form Retrospective Permission Statutory Interpretation

Case Brief

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Parties

Wilton UK Limited

Claimant

John Michael Shuttleworth

Defendant

Graham Smith

Defendant

Harry James Banks

Defendant

The Banks Group Limited

Defendant

Banks Mount Oswald Limited

Defendant

Procedural Posture

Derivative Claim Under Companies Act 2006 / Preliminary Issue Judgment on Validity of Service and Retrospective Permission

Legal Issues

  1. 1 Is service of claim form and particulars valid without prior court permission under s261 Companies Act 2006?
  2. 2 Can the court retrospectively validate service and permit continuation of proceedings after expiry of limitation period?

Ratio Decidendi

The failure to obtain court permission prior to service of the claim form in a statutory derivative action under Companies Act 2006 is a breach of statute, not merely a procedural error under the CPR. CPR 3.10 does not apply. However, the statutory regime and legislative history do not mandate that proceedings are a nullity for want of permission. The court retains jurisdiction to grant retrospective permission to continue the claim and validate service, subject to further hearing on discretion.

Court Disposition

Service not automatically invalid; court may retrospectively grant permission to continue and validate service, subject to further hearing.

Orders

  • Further hearing required to determine exercise of discretion on retrospective permission and validation of service.