Waiver in insolvency proceedings

The trustees in bankruptcy brought proceedings under Insolvency Act s339 and/or s423, that were issued in October 2019 and listed for first hearing in March 2020. The limitation period for the claims expired in February 2020.

Insolvency Rule 12.9 requires that a sealed copy of the application must be served at least 14 days before the date fixed for its first hearing. The trustees failed to do this. The Respondent then engaged in various aspects of the proceedings, including a hearing at which directions were given for pleadings and requested an extension of time in which to serve Points of Defence. In November 2020, the Respondent issued an application to strike out the claim on the basis that the application had not been served in accordance with rule 12.9 and the limitation period had expired.

The trustees acknowledged that they had breached rule 12.9, but opposed the strike out application on the basis that the Respondent had submitted to the jurisdiction of the court by engaging with and participating in the proceedings.

The court concluded that the reason the Respondent was being deprived of its limitation defence was not the late service of the application but because the Respondent decided to waive the breach of the service rule by taking an active part in the proceedings, so it was plainly equitable to give effect to that waiver and dismiss the strike out application.

Mark Robin Sands v Bruce Antonio Dyer and others [2021] EWHC 2124 (Ch)

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