Appealing the adjudicator's decision not to make a bankruptcy order (Budniok v Adjudicator, Insolvency Service)

Appealing the adjudicator's decision not to make a bankruptcy order (Budniok v Adjudicator, Insolvency Service)

In what is believed to be the first reasoned judgment dealing with an appeal from a decision of the adjudicator not to make a bankruptcy order, we consider the judgment in Re Budniok; Budniok v Adjudicator, Insolvency Service.

Original news

Re Budniok; Budniok v Adjudicator, Insolvency Service [2017] Lexis Citation 16, [2017] All ER (D) 02 (Mar)

The High Court of Justice allowed the applicant's appeal against a decision of the adjudicator of the Insolvency Service, in which the adjudicator refused to make a bankruptcy order in relation to him. On the evidence, there wasnothing to prevent the order being made. The court also gave consideration to general issues arising out of appeals under the Insolvency Act 1986 (IA 1986).

What are the practical points to take away from this decision?

  • appeals from the refusal of the adjudicator to make a bankruptcy order are likely to be analogous to appeals challenging the decision of an office-holder, and are unlikely to be true appeals to which CPR Part 52 applies—this means that the court can probably review the matter afresh (whether or not on new evidence) and is given a wide discretion in relation to the conduct of such appeals
  • a number of practical issues in relation to the issue and conduct of appeals from a decision of the adjudicator (ie in relation to evidence, the role of the adjudicator and any third parties, and costs) were usefully considered by the chief registrar and his conclusions (whether or not he strictly had to make a decision on a particular issue) are likely to form the basis of future appeals of this kind
  • the new bankruptcy application regime essentially allows for the adjudicator to make determinations as to a debtor's centre of main interests (COMI) to the extent of being satisfied (or not as the case may be) that the debtor's COMI is in England and Wales, without being able to refer this (often complex) issue to the court

What wasthe background to this

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About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.