The case provides guidance for liquidators as to the appropriate
exercise to conduct when deciding whether the threshold of 25% in
value of creditor claims has been reached in support of a request
for a creditors' meeting under s 171.
A liquidator is not required to apply a 'strict proof'
test to a creditor's claim at the requisition stage of a
In November 2014, the company entered into a creditor's
In September 2015, the applicant requested that the liquidator
hold a creditors' meeting for the purpose of considering his
removal as liquidator, pursuant to s 171 Insolvency Act 1986. The
liquidator refused on the grounds that the request had not been
supported by 25% in value of the company's creditors. The court
considered the exercise that should be carried out in order to
ascertain whether the 25% threshold had been reached.
The applicant argued that the liquidator was not required to
assess the merits of a creditor's claim at the requisition
stage. Conversely, the liquidator argued that he was obliged to put
the claim to strict proof by assessing each creditor claim based on
the evidence available to him.
Guidance on the issue had been given in the dicta set out in
Re Greenhaven Motors. The exercise in respect of creditor
claims to be undertaken by the liquidator at a creditors meeting
was different from that at the requisition stage. Determining
whether 25% in value of the creditors had requested the meeting
only required the liquidator to eliminate 'connected party'
or obviously wrong claims.
The degree of scrutiny exercised by the liquidator in deciding
whether (and then refusing) to call a meeting of the creditors
exceeded what was necessary at that stage.
After much consultation and debate, the Ministry of Justice has published the final version of the Pre-Action Protocol for Debt Claims (the Protocol), which is due to come into force on 1 October 2017.
Witnesses can, in various circumstances, be subpoenaed by the Courts of overseas jurisdictions to attend to give evidence by way of depositions within that jurisdiction. So why not take that one step further and ask a foreign court to subpoena the witness to give evidence by live satellite video link to a Court in London? This would be the next best thing to having the witness present in Court. Indeed, the Commercial Court is increasingly amenable to evidence being given in this way (albeit on a
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