Setting aside statutory demands and abuse of process (Harvey v Dunbar Assets plc (No 2))

Setting aside statutory demands and abuse of process (Harvey v Dunbar Assets plc (No 2))

In Harvey v Dunbar Assets plc (No 2), the Court of Appeal was asked to decide whether a debtor could apply to set aside a statutory demand on a ground that he had unsuccessfully argued in respect of a previous statutory demand that had been served on him. Joseph Curl, barrister at 9 Stone Buildings who acted for Dunbar Assets plc, discusses the Court of Appeal’s judgment.

Original news

Harvey v Dunbar Assets plc (No 2) [2017] EWCA Civ 60, [2017] All ER (D) 127 (Feb)

The Court of Appeal, Civil Division held that, in the circumstances of the case, it was not open to the debtor to apply to set aside a second statutory demand on the same grounds on which he had unsuccessfully raised in opposition to a first statutory demand and which he had never sought to uphold on the appeal from the first statutory demand.

What was the background to the appeal?

This was an appeal to the Court of Appeal against the decision of His Honour Judge Kaye QC (sitting as a High Court judge) to refuse to set aside a statutory demand served on the appellant, Mr Harvey, by Dunbar Assets plc (Dunbar). The proceedings had a very unusual and drawn-out history.

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 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 to rule 6.5(4) of the Insolvency Rules 1986, SI 1986/1925 on the ground that an officer of Dunbar had allegedly promised him that the guarantee would never be called in. Mr Harvey contended that the alleged representation gave rise to a promissory estoppel in his favour. This is an

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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.