Esken was a Guernsey registered non-cellular company that entered administration in England on the basis that the company’s centre of main interests (comicile) was in England.
The administrators sought to conclude the administration by converting it into a creditors’ voluntary liquidation (CVL) so as to enable a disclaimer of a leasehold interest of the company’s in the liquidation which would not be possible in administration.
The administrators filed a paragraph 83, Schedule B1, Insolvency Act 1986 (IA) notice with the Registrar of Companies to move the company into CVL and then applied to court for an order confirming the CVL.
The judge noted that the company qualified as a company for the purpose of the administration provisions in Schedule B1, being as it fell within the third limb of para 111(1A) of Schedule B1, being “a company not incorporated in the EEA [Guernsey not being an EEA state] but having its comicile in … the UK”. The judge also noted para 83 of the same Schedule B1 permitted companies in administration to be put into voluntary liquidation in England by the simple expedient of filing a notice with the Registrar of Companies.
The judge referred to section 221(4) of the IA which is to the effect that no unregistered company shall be wound up under the IA voluntarily except in accordance with the EU regulation and referred to the EU regulation as retained in England post-Brexit which permitted the opening of a CVL where the company’s comicile was in the UK “with the confirmation of the court”.
The judge held that there was no need for the para 83 route into CVL to be reconciled with section 221(4), IA. The provision on the winding up of unregistered companies of which section 221(4) formed part (being Part V of the IA) did not overlap, interact with or duplicate the provisions of Schedule B1. Part V simply did not apply when a company such as the instant one with its registered office overseas but its comicile in England moved from administration into CVL.
The judge did however note that it was not clear to her how an unregistered company could be voluntarily wound up in accordance with the Retained EU Regulation. Did the reference to confirmation by the court in the Retained EU Regulation mean that there was only jurisdiction to open a CVL of an unregistered company with its comicile in England once the court confirmed it? Or was it necessary to read into the Retained EU Regulation the word “subsequently” so that it referred to a CVL being validly commenced even where it was only subsequently confirmed by the court? What if it was not subsequently confirmed by the court?
The judge noted that it was not necessary in the instant case to decide these questions as para 83 had the effect that the company had validly entered CVL when the notice was filed.
In re Esken [2026] EWHC 495 (Ch)
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