Parkinson Engineering Services Plc v Swan & Anor

Parkinson Engineering Services Plc v Swan & Anor

The substitution of the liquidator as claimant was necessary because the original claim could not properly be carried on without it, as the company was barred by statutory release under section 20. The claim asserted by the liquidator under section 212 was identical in substance to the original claim. The judge had jurisdiction to permit the substitution under section 35 and CPR rule 19.5, and properly exercised discretion in granting leave under section 212(4) and allowing the amendment, despite delay and the effect on the limitation defence.

Parties
Claimant: Parkinson Engineering Services PLC (in liquidation); Defendant: Julie Swan; Defendant: Peter Yeldon
Jurisdiction
England and Wales
Judgment Date
21 December 2009
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division)
Outcome
Appeal dismissed
Legal Topics
Amendment of Pleadings, Limitation of Actions, Substitution of Parties, Liquidator's Powers, Section 212 Insolvency Act
Civil Procedure Insolvency Law Amendment of Pleadings Limitation of Actions Substitution of Parties Liquidator's Powers Section 212 Insolvency Act

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Parties

Parkinson Engineering Services PLC (in liquidation)

Claimant

Julie Swan

Defendant

Peter Yeldon

Defendant

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division)

Legal Issues

  1. 1 Whether the court had power to permit substitution of the liquidator as claimant after expiry of the limitation period
  2. 2 Whether the substitution was necessary for determination of the original action under section 35 of the Limitation Act 1980 and CPR rule 19.5
  3. 3 Whether leave should have been granted under section 212(4) of the Insolvency Act 1986 to proceed against the former administrators despite their release

Ratio Decidendi

The substitution of the liquidator as claimant was necessary because the original claim could not properly be carried on without it, as the company was barred by statutory release under section 20. The claim asserted by the liquidator under section 212 was identical in substance to the original claim. The judge had jurisdiction to permit the substitution under section 35 and CPR rule 19.5, and properly exercised discretion in granting leave under section 212(4) and allowing the amendment, despite delay and the effect on the limitation defence.

Court Disposition

Appeal dismissed

Orders

  • Substitution of the liquidator as claimant permitted
  • Leave granted under section 212(4) Insolvency Act 1986 to proceed against the former administrators