The importance of compliance with the rules on service

A trustee in bankruptcy applied to suspend a bankrupt’s discharge. The application was issued eight days before the bankrupt’s automatic discharge from bankruptcy. In spite of the merits of the application, failure to serve the application in accordance with CPR6 resulted in its dismissal.

The court granted suspension from discharge from bankruptcy on an interim basis, pending a full hearing. At the substantive hearing, the bankrupt sought that the application was dismissed on the basis that the trustee:

  • failed to effect valid service of the suspension application prior to the date upon which the bankrupt was discharged in accordance with section 279 of the Insolvency Act 1986; or
  • the trustee failed to serve the suspension application and the evidence on the bankrupt and the official receiver within time, prior to the first hearing of his application.

Even though the trustee had issued an application for post-validation service and that the court accepted that the trustee had “a compelling case on the merits for the suspension of bankruptcy”, the suspension application was dismissed.

Whilst the application had been served by email, there was no prior agreement to accept service by email, and the documents were not subsequently re-served. The hard copies of the documents were not delivered. The court rejected the trustee’s arguments that there was an agreement between the parties that the service was valid. Arguments on waiver and estoppel were also rejected. In considering the time limits imposed by CPR6 and Rule 10.142 of the Insolvency (England and Wales) Rules 2016, the suspension application was filed and served late. 

This case demonstrates the need for office holders to comply with procedural rules, especially where any breach of the procedural rule may trigger a limitation defence.

Allen v Mittal [2022] EWHC 762 (Ch)

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