Is an originating application, like a claim form, invalid if served out of time?

Trustees in bankruptcy issued an application against various parties seeking relief for alleged transactions at an undervalue, preferences and transactions to defraud creditors on the last day before the limitation period ran out.

The application was given a return date in July 2019. It was not served on the parties as the Trustees applied for and obtained an order serving the application out of the jurisdiction on one of the respondents.

The court made that order and vacated the July hearing relisting the first hearing for October 2019 and the Applicants served the Respondents at least 14 days before that hearing in accordance with rule 12.9 of the Insolvency Rules 2016.

Two of the Respondents, amongst other things, applied for an order striking out the originating application as being invalid because it had not been served in accordance with rule 12.9 in advance of the original return date.

The Respondents argued that the situation was akin to the position in respect of a claim form in that, if a claim form is not served within four months of issue, it is invalid and a new claim must be issued.

The Respondents clearly sought such an order knowing that if the application had to be re-issued, the claim would be statute barred due to the expiry of the relevant limitation period.

However, the Judge disagreed and, unsurprisingly, held that an originating application was a different process to a claim form and that the obligation to serve the originating application was at least 14 days before the relisted hearing and, in any event, failure to adhere to that rule did not invalidate the application.

Bell and Williams v Ides and others [2020] EWHC 230 (Ch)

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