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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

24 JUN 2009

Setting Aside Statutory Demands - Dissent in the Court of Appeal - Remblance v Octagon Assets Ltd [2009] EWCA Civ 581

Lord Justice Mummery has dissented from the majority view in the recent judgment of the Court of Appeal in Remblance v Octagon Assets Ltd [2009] EWCA Civ 581. The case makes very interesting reading, not least because of the dissenting judgment, but also because the subject of setting aside statutory demands is given a thorough airing. As Dyson, LJ notes: "The only issue with which we are concerned is whether the judge exercised his discretion properly in refusing to set aside the statutory demand against Mr Remblance under rule 6.5(4)(d) of the Insolvency Rules 1986."

In his dissenting judgment Mummery, LJ notes:

"Mann J was entitled to take the view that there is nothing unjust in Octagon demanding payment of a debt owed by someone who is liable to pay it. Nor is it unjust for Octagon or the court to expect someone, who is able to pay an indisputable debt, to pay it. If Mr Remblance chooses not to pay a debt which he is able to pay and cannot dispute, Mann J was entitled to take the view that he has chosen to suffer the consequences of not complying with the demand. It is just that he should have to live with the consequences of his own decision. The judgments of Ward and Dyson LJJ, which I have read in draft, do not persuade me that this court has grounds for interfering with the exercise of discretion by this experienced judge. I would dismiss this appeal."

 

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