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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

21 MAY 2013

Anglo Irish Bank Corporation Ltd v Flannery [2012] EWHC 4090 (Ch); [2013] BPIR 165

(Chancery Division, Newey J, 21 November 2012)

A bank obtained permission to serve out of the jurisdiction served a bankruptcy petition on a debtor resident in Andorra, contending that the debtor was or had been carrying on business in England & Wales. The following issues were determined: (1) whether permission to serve out of the jurisdiction should have been granted; and (2) whether the creditor had a good arguable case that it could satisfy the requirements of s 265(1)(c)(ii) of the Insolvency Act 1986 (the Act). Chief Registrar Baister held ([2013] BPIR 1) that the bank did not have a good arguable case that it could satisfy the jurisdictional requirements of s 265(1)(c)(ii) of the Act, and permission should not have been given to serve out of the jurisdiction on the basis that the petition had a reasonable prospect of success. The bank appealed. Newey J dismissed the appeal ([2012] EWHC 4090; [2013] BPIR 165). The chief registrar did not fall into error and the same conclusion would have been reached by this Court on the basis of the evidence. There was nothing to gainsay the debtor's claim, made by way of witness statement and supported by what appeared to be contemporaneous documents, that he ceased to have any personal interest in the relevant business from 2003, and such involvement as he had was not carrying on business himself. On that basis, there was no need to explore the issue as to whether it could ever be right to order disclosure in bankruptcy proceedings or whether or not it could be appropriate in certain circumstances to direct cross-examination, on the basis that a petitioning creditor had to be in a position to prove one of the pre-conditions in s 265 of the Act without resort to disclosure or cross-examination. 

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