DONALDA THERESA SWEENEY IN RELATION TO THE WINDING UP OF WEST LARKIN LTD [2020] ScotCS CSOH_9 (14 January 2020)

DONALDA THERESA SWEENEY IN RELATION TO THE WINDING UP OF WEST LARKIN LTD [2020] ScotCS CSOH_9 (14 January 2020)

The Noter, having paid the judgment debt in full, is entitled to an assignation of the Respondent's claim against the Company under rule 7.21(4) of the Insolvency Rules. The proviso 'if otherwise legally entitled to do so' does not qualify the entitlement to assignation but applies at the stage of submitting a claim...

Source-derived case information.

Citation
[2020] ScotCS CSOH_9
Parties
Applicant: The Noter; Respondent: The Respondent
Jurisdiction
Scotland
Judgment Date
14 January 2020
Procedural Posture
Insolvency (note in Liquidation Proceedings) / Judgment After Debate on Entitlement to Assignation Under Insolvency Rules
Outcome
Application granted (subject to agreement on terms of assignation)
Legal Topics
Assignation of Debt, Rights of Relief, Joint and Several Liability, Unjustified Enrichment, Liquidation Procedure
Insolvency Civil Procedure Assignation of Debt Rights of Relief Joint and Several Liability Unjustified Enrichment Liquidation Procedure

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Parties

The Noter

Applicant

The Respondent

Respondent

Procedural Posture

Insolvency (note in Liquidation Proceedings) / Judgment After Debate on Entitlement to Assignation Under Insolvency Rules

Legal Issues

  1. 1 Whether the Noter is entitled to an assignation of the judgment debt under rule 7.21(4) of the Insolvency (Scotland) (Receivership and Winding Up) Rules 2018
  2. 2 Whether the Respondent can resist assignation on grounds of unjustified enrichment or inconvenience
  3. 3 Interpretation of the proviso 'if otherwise legally entitled to do so' in rule 7.21(4)

Ratio Decidendi

The Noter, having paid the judgment debt in full, is entitled to an assignation of the Respondent's claim against the Company under rule 7.21(4) of the Insolvency Rules. The proviso 'if otherwise legally entitled to do so' does not qualify the entitlement to assignation but applies at the stage of submitting a claim in the liquidation. The Respondent's arguments based on unjustified enrichment and inconvenience do not justify refusal of assignation at this stage. The decree of joint and several liability is binding and cannot be disregarded absent conclusive evidence to the contrary.

Court Disposition

Application granted (subject to agreement on terms of assignation)

Orders

  • Matter put out By Order to discuss terms of assignation and interlocutor; all questions of expenses reserved