Repeating an argument to set aside a second statutory demand—Harvey v Dunbar Assets plc (No 2)

Repeating an argument to set aside a second statutory demand—Harvey v Dunbar Assets plc (No 2)

In Harvey v Dunbar Assets plc (No 2), the court heard an appeal on the refusal to set aside a second statutory demand, where the same point had been raised on the first statutory demand but where the first statutory demand had been set aside on appeal on a different point. Joseph Curl, barrister at 9 Stone Buildings, discusses the decision.

Original news

Harvey v Dunbar Assets plc (No 2) [2015] EWHC 3355 (Ch), [2015] All ER (D) 02 (Dec)

The Chancery Division dismissed an appeal against a district judge's dismissal of the claimant's application to set aside a second statutory demand issued by a bank against him under a guarantee where it had been based on the same argument, promissory estoppel, used in respect of his application to set aside the first statutory demand issued by the bank. Where there was a second statutory demand, an argument that had been run unsuccessfully and abandoned on appeal could not be raised in respect of a second statutory demand unless there was a change of, or special, circumstances. There were no special or exceptional circumstances in the present case to justify re-opening or re-arguing the promissory estoppel point, which had previously been rejected and the district judge had been entitled to come to the conclusion that he had.

What was the background to the appeal?

This appeal of a debtor’s unsuccessful application to set aside a statutory demand had an unusual background. On 10 March 2008, Mr Harvey had been one of four individuals who had entered into a composite instrument of personal guarantee in favour of what was, at the time, Dunbar Bank plc (Dunbar) to secure the borrowing of a company. The company’s indebtedness was called in during 2011 and, shortly thereafter, a statutory demand was served on Mr Harvey under the guarantee. Mr Harvey applied to set the statutory demand aside pursuant

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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.