McGuire v Rose & Anor

McGuire v Rose & Anor

Permission to appeal is refused because, even applying the correct legal test under section 304(2) of the Insolvency Act 1986, the proposed claims have no real prospect of success, would not yield any worthwhile benefit to the estate, and are undermined by lack of valuation evidence and the applicant's conduct. The judge below was entitled to consider all relevant factors, including likely defences and the manner in which litigation would be conducted.

Parties
Appellant: Michael McGuire; Respondents: Robert Geoffrey Rose (Former Trustee in Bankruptcy of Michael McGuire) & others
Jurisdiction
England and Wales
Judgment Date
25 April 2013
Procedural Posture
Civil Appeal / Application for Extension of Time and Permission to Appeal (second Appeal)
Outcome
Permission to appeal refused; extension of time for appeal granted
Legal Topics
Bankruptcy, Trustee Misfeasance, Permission to Sue Trustee, Section 304 Insolvency Act 1986, Limitation, Valuation Evidence
Insolvency Law Civil Procedure Bankruptcy Trustee Misfeasance Permission to Sue Trustee Section 304 Insolvency Act 1986 Limitation Valuation Evidence

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Parties

Michael McGuire

Appellant

Robert Geoffrey Rose (Former Trustee in Bankruptcy of Michael McGuire) & others

Respondents

Procedural Posture

Civil Appeal / Application for Extension of Time and Permission to Appeal (second Appeal)

Legal Issues

  1. 1 Whether the High Court judge erred in requiring demonstration of a surplus to the bankrupt as a condition for permission under section 304(2) of the Insolvency Act 1986
  2. 2 Whether the judge misapplied the test for granting permission to bring proceedings against a trustee in bankruptcy
  3. 3 Whether the judge erred in considering potential defences (Trustee Act 1925 section 23, limitation) at the permission stage

Ratio Decidendi

Permission to appeal is refused because, even applying the correct legal test under section 304(2) of the Insolvency Act 1986, the proposed claims have no real prospect of success, would not yield any worthwhile benefit to the estate, and are undermined by lack of valuation evidence and the applicant's conduct. The judge below was entitled to consider all relevant factors, including likely defences and the manner in which litigation would be conducted.

Court Disposition

Permission to appeal refused; extension of time for appeal granted

Orders

  • Time for appealing extended to render the appeal in time
  • Permission to appeal refused