Making a song and a dance about an assignment of a cause of action in bankruptcy—Cole v Howlett

Making a song and a dance about an assignment of a cause of action in bankruptcy—Cole v Howlett

In Cole v Howlett [2015] EWHC 1697 (Ch), [2015] All ER (D) 178 (Jun), an issue faced by the court was whether the claimant (a discharged bankrupt) could amend his claim form and particulars of claim having acquired from the Official Receiver (OR) the cause of action underlying his claim. A further issue concerned the scope of jurisdiction of the court under the CPR to vary or revoke an order, and whether in this case a previous order made by the judge (Peter Smith J) was a final order.

But what lessons can we take from this case from an insolvency perspective?

Briefly, what were the facts of the case?

Mr Cole was made bankrupt in 1990. One of the assets of his estate (albeit one that he failed to disclose in his statement of affairs) was copyright in music that he had written.

Some years later, Mr Cole issued proceedings against the defendants alleging infringement of that copyright in the song 'Warrior's Dance' by The Prodigy. The trial was due to commence on 22 April 2015. However, shortly before the trial, it came to light that title in the copyright (and therefore the right to sue for infringement of it) did not vest in Mr Cole—it remained as an asset in his bankruptcy estate.

Mr Cole made an application on the first day of the trial for permission to amend his particulars of claim, and for the trial to be adjourned. This application was dismissed by Peter Smith J, who ordered that the claim be stayed for a month so as to allow the OR to apply to intervene and, failing that, that the claim be struck out (the original order).

The OR was contacted, and in due course the copyright and bundle of rights associated with it (including the right to sue for infringement) were assigned to Mr Cole (see below). He therefore made a further application for permission to

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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.