The need to ensure that pleadings are as directed

Mr Lindsay, the creditor, had properly brought his claim under section 212 of the Insolvency Act by way of application notice in October 2019. The application was supported by a witness statement from Mr Lindsay. The witness statement alleged, amongst other things, that in 2006 and 2007, the respondents used company funds to purchase properties for their own benefit.

It was clear from the witness statement that the claim was to cover all events from 2003 to administration in 2008, even where information had only recently come to light.

Notwithstanding that the claim was properly brought by way of application notice, in accordance with more general practice over the last 10 or so years, in June 2020, Mr Lindsay was ordered to file and serve points of claim, which he did.

The application for summary judgment was for judgment “in respect of all money received from clients upon trust from 1 January 2008 to 18 September 2008” as well as for the claims relating to the purchase of properties in 2006 and 2007. However, the latter claims did not appear in the points of claim (other than by reference to the witness statement).

The failure to plead all issues in the points of claim was not a “mere technical pleading point” as it meant that the respondents were not properly able to understand the claims that they were answering. The summary judgment application was, therefore, dismissed.

This case is a salient lesson to insolvency litigators to follow court directions and the CPR or risk failed proceedings., Re 2022 WL 00718826

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