Seeking adjournments at bankruptcy hearings—Day v Refulgent Ltd

Seeking adjournments at bankruptcy hearings—Day v Refulgent Ltd

Eleanor Temple, barrister at Kings Chambers, explores Day v Refulgent Ltd and explains why petitioners and litigants should not turn up at a bankruptcy petition hearing and expect to get an adjournment.

Original news

Day v Refulgent Ltd [2016] EWHC 7 (Ch), [2016] All ER (D) 21 (Jan)

The Chancery Division, in dismissing an appeal against a bankruptcy order, held that there had been a clear and careful judgment by the district judge, who had reached a decision that had been well open to her on the evidence.

What was the background to the application?

This was an application by Mr Day for permission to appeal a bankruptcy order made against him by District Judge Kelly. The application for permission to appeal was listed at the same time as the appeal.

The brief background to this matter was that the respondent in this case (and petitioner in bankruptcy), Refulgent Ltd, had brought proceedings in the High Court against Mr Day and another. Pending the hearing of those proceedings, Refulgent had obtained a freezing order over Mr Day’s worldwide assets. As a result of court hearings regarding that order, Mr Day had been ordered to pay costs of £30,000 to Refulgent. Mr Day should have paid these costs by 24 December 2014, but failed to do so. Therefore, Refulgent presented a bankruptcy petition and Mr Day sought to defend that petition. He did so on several grounds, including:

  • first, he maintained the debt was secured by the freezing order and so the petition should be dismissed
  • second, Mr Day argued that he wanted to sell some of the assets subject to the freezing order to pay the debt and said that the district judge, who had heard the petition in bankruptcy, was unreasonable in not allowing him to do so by adjourning the petition. Refulgent argued that it was not secured by

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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.