O’Donnell v The Governor and Company of the Bank of Ireland (No. 2)  EWHC 489 (Ch)
(Chancery Division, Newey J, 6 March 2013)
On 21 December 2012, Newey J dismissed the bankruptcy petitions of O and his wife on the grounds that their COMIs were in Ireland, rather than England when their petitions were presented (see  EWHC 3749 (Ch);  BPIR 509). Nonetheless, by two further applications relying on new evidence, they sought the review of those orders under s 375 of the Insolvency Act 1986 and the making of bankruptcy orders. Newey J dismissed the applications. The circumstances had to be exceptional in order to invoke the jurisdiction and, whist not impossible, it would be particularly unusual to make an order under s 375 after a trial with cross-examination. Much of the new evidence sought to be relied upon post-dated the previous judgment. Other evidence added nothing to that which was available at trial. Such evidence as was material (being correspondence with other creditors) had been available at the time of the trial. There was no explanation for its unavailability, but overall it would not have made any difference to the original decision.
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