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There have been a number of recent—and conflicting—decisions as to the validity of the appointment of administrators outside of court opening hours. The issues before the court in Re Symm & Company were whether an administrator had been validly appointed where the notice of appointment was filed by directors outside of court opening hours, and, if so, on what date and time the appointment took effect. Mr Justice Zacaroli held that it is not permissible for a company or its directors to effect an appointment of an administrator outside of court opening hours, but that defects in filing could be cured under rule 12.64 of the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024. The notice of appointment was treated as having been filed when the court office opened on the next working day. Written by Jessica Powers, barrister at New Square Chambers.
Re Symm & Company Ltd  EWHC 317 (Ch)
Practitioners acting for a company or its directors should ensure, as far as they can, that notices of appointment of administrators are filed when the court office is open for business. Clients should be advised that, if a notice of appointment is filed outside of court opening hours, the appointment will likely still be held to be valid, but the notice of appointment will be treated as having been filed at the time the court office opens on the next business day.
It should be noted that a change to the IR 2016 is expected relatively soon in order to clarify the position as to the appointment of administrators outside of court opening hours. Until that occurs, the court will process notices of appointment in accordance with the guidance issued by the Chancellor of the High Court on 29 January 2020.
Solicitors acting for the directors of Symm & Company Limited filed a notice of appointment of administrators at 17:36 on 4 February 2020. In accordance with the Chancellor’s guidance, the notice of appointment was brought to the attention of a judge on 5 February 2020. Zacaroli J had to determine the validity of the notice of appointment, and the correct date and time which should be endorsed on the notice of appointment.
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