Jonathan Frankel wins high court insolvency litigation case

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BIRMINGHAM DISTRICT REGISTRY

Case No. 8224 of 2010

Priory Courts

33 Bull Street

Birmingham

B4 6DS

Friday, 17th December 2010

Before:

HIS HONOUR JUDGE PURLE QC

(sitting as a High Court Judge)

 Between:

 SAMANTHA HOBBS & NEIL RYAN

Applicants

– v –

NEIL GIBSON

KEITH STEVENS & MARK TAILBY

Respondents

Jeffrey Littman instructed by GTC Law appeared for the Applicants

Rajesh Pillai instructed by McGrigors appeared for the Respondents

Transcript from a recording by Ubiqus

Cliffords Inn, Fetter Lane, London EC4A 1LD

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JUDGMENT

(Approved)

JUDGE PURLE QC:

1. The application before me is brought under section 108 of the Insolvency Act (“the Act”) for the removal of the present liquidators of Tanit Motors Limited (“Tanit”) and Robin Hood Recycling Limited (“Robin Hood”). Unusually, it is in issue who the present liquidators are. The applicants are the children of the personal representatives of the now deceased former controlling mind of those two companies, Mr Brian Chittenden (“Mr Chittenden”) who died suddenly on the 21st August 2006. He was the sole director of both companies and had all of the shares of Tanit and 96% of the shares of Robin Hood. The affairs of Tanit and Robin Hood were closely related. They both carried on business from freehold premises at Warsop in Nottinghamshire.

2. The applicants contend that the first and third respondents (Mr Gibson and Mr Tailby) are the liquidators. The respondents by contrast contend that the first and second respondents (Mr Gibson and Mr Stevens) are the liquidators.

3. Mr Gibson and Mr Tailby were formerly the administrators of both companies. They were so appointed by Mr Justice Warren on the 25th of August 2006. The administration applications were presented by a creditor on the basis that, though comfortably balance sheet solvent, the effect of the death of Mr Chittenden, as sole signatory to the bank account, was that the companies were in fact unable to pay their debts and were in that sense insolvent. It appears that the expectation or hope was that the companies might either be rescued and kept as going concerns, or at least that the result would be better for creditors than a liquidation.

4. Subsequently the companies moved from administration into creditor’s voluntary liquidation (“CVL”) by the issue of notices under paragraph 83 of schedule B1 of the Insolvency Act 1986 (“Schedule B1”). The notices were dated 20th August 2007. The liquidators were said to be Mr Gibson and Mr Stevens. A creditors’ committee of Tanit approved that course. There was no separate approval in the case of Robin Hood.

5. Paragraph 83(7) of Schedule B1 provides (in the case of a company moving from administration to CVL) as follows:

“The liquidator for the purposes of the winding up shall be –

(a) a person nominated by the creditors of the company in the prescribed manner and within the prescribed period; or

(b) if no person is nominated under paragraph (a), the administrator.”

6. The respondents contend that Mr Gibson and Mr Stevens were validly appointed liquidators under paragraph 83(7)(a). The applicants say they were not and that the default position under paragraph 83(7)(b) applies, so that Mr Gibson and Mr Tailby became liquidators. Mr Tailby, whatever his technical legal status, has in fact played no role in the liquidations since their commencement, as he does not consider himself to be a liquidator.

7. Resolution of this issue requires consideration to be given to the “prescribed manner” and “prescribed period” referred to in paragraph 83(7)(a).

8. Rule 2.117(3) of the Insolvency Rules 1986 (“the rules”) provided at the material time that for the purpose of paragraph 83(7) of Schedule B1, a person should be nominated as liquidator in accordance with the provisions of rule 2.33(2)(m) or rule 2.45(2)(g). The same rule went on to provide that a liquidator’s appointment took effect by the creditor’s approval, with or without modification, of the administrator’s proposals or revised proposals. Reference to the administrator’s proposals was of course a reference to those required to be put before creditors following the appointment of administrators pursuant to paragraph 49 of Schedule B1.

9. Rule 2.33(2)(m) identified the prescribed manner as follows:

“If a creditors’ voluntary liquidation is proposed, details of the proposed liquidator must be provided, and a statement that, in accordance with paragraph 83(7) and rule 2.117(3), creditors may nominate a different person as the proposed liquidator, provided that the nomination is made after the receipt of the proposals and before the proposals are approved”.

10. Thus, the prescribed manner is by nomination of a different person and the prescribed period is the period running from the receipt of the proposals up to their approval. There were and remain similar provisions dealing with revised proposals.

11. In the present case, the proposals for Tanit (as revised and approved) left the decision of the choice of liquidator, should a move to CVL be appropriate, to Tanit’s creditors’ committee. In my judgment, that fell outside rule 2.33(2)(m). What was required was the nomination of a different person, not a different process. It follows in my judgment that the appointment of Mr Stevens as liquidator of Tanit was not a valid appointment and that Mr Gibson and Mr Tailby became the liquidators. 

12. The point is particularly important for the creditors because Mr Gibson and Mr Tailby were each from the same firm, but Mr Stevens was from a different firm. Mr Stevens was nominated by one of the creditors. Whilst I have some misgivings in general about appointing two different firms, which has the potential to increase costs, that is often the result of proxy battles and compromises, and is not a matter for criticism here of any of the Respondents. It is what the creditors’ committee chose, but that committee had no power to nominate any liquidator. Whilst, therefore, it is clear that the creditors’ committee preferred that one liquidator from a firm different from the administrators’ firm should be appointed, the process adopted in this case did not achieve that aim. 

13. It is also said on behalf of the applicants that the creditor’s committee was not properly constituted, and could not act in any event. Reliance was placed on rule 2.51(1), which is to the following effect:

“The creditors’ committee does not come into being, and accordingly cannot act, until the administrator has issued a certificate in Form 2.26B of its due constitution.”

14. Rule 2.51(5) goes on to provide for filing the certificate with the court and sending a copy to the registrar of companies.

15. It was submitted (and I accept) that something is only issued if it is in some way circulated or put into the public domain as actually contemplated by rule 2.51(5).

16. In this case, Mr Gibson confidently asserted in a witness statement which was admitted into evidence before me, though originally made in other proceedings, that the relevant notice was both filed with the court and a copy sent to the registrar of companies. As it happens, neither of those locations reveals any trace of the notice said to have been filed and sent. Mr Gibson in cross-examination was not at all confident, despite the terms of his witness statement. He readily accepted that it was possible if not probable that the relevant notice had not been filed or sent but had been overlooked, as he would first have awaited the approval of the creditors of the minutes and other documents despatched to them.

17. Moreover, a perplexing feature of the copy of the notice on his file was that as signed it has been re-dated with a “2007” date, though as originally drafted the date was “2006”, which was when the committee was appointed. That gives rise to the suspicion that the notice was only completed after the propriety of the appointment was questioned, and then mis-dated. Mr Gibson appeared to accept that the probability was that he changed the date when printing out a copy later. He gave no sensible reason for doing so. I am bound to say that I found his evidence wholly unsatisfactory at this point. I am not however going to attribute any base motive to him. The probability is that the notice did come into existence as a draft in 2006 but its filing and sending were overlooked, and it was not circulated or issued by any other means. Mr Gibson’s witness statement in which he confidently asserted that the notice and copy were filed and sent was not made with the care and precision of thought that one would expect of a professional person in his position. I do not think that that confident assertion should ever have been advanced.

18. In the circumstances, it does seem to me that the creditors’ committee did not come into being because the relevant form 2.26B was never issued within the meaning of the rules. The point is in a sense academic because, for the reasons I have given the committee had no power to nominate a liquidator, even if properly constituted

19. It was suggested that rule 2.65 assists. Under that rule, the acts of the creditors’ committee are valid notwithstanding any defect in the formalities of its establishment. As, however, the committee had no power to nominate a liquidator, rule 2.65 is not engaged. I doubt whether that rule would be engaged anyway where no certificate had been issued, as the issue of a certificate is a pre-condition of the committee’s coming into existence.

20. The matter does not end there because the question of the appointment of the joint liquidators was considered subsequently by the Tanit creditors at a meeting held on 12th March 2008. Resolutions were passed (i) confirming Mr Gibson and Mr Stevens as joint liquidators; (ii) removing and releasing Mr Tailby as joint liquidator.

21. It is difficult to see how Mr Gibson and Mr Stevens might be confirmed as joint liquidators as Mr Stevens was not a liquidator at all. Additionally, it is said by the applicants that the only removal power vested in the creditors is under section 171 of the Act. Section 171(2), so far as material provides

“… The liquidator may be removed from office only by an order of the court or –

(b) in the case of a creditors’ voluntary winding-up, by a general meeting of the company’s creditors summoned specially for that purpose in accordance with the rules.”

22. A number of objections are taken which are said, individually and cumulatively, to take the case out of section 171, so that Mr Tailby was not properly removed.

23. The rules provided at the material time for 21 clear days’ notice. The letter convening the meeting was dated the 20th February 2008. For 21 clear days to have elapsed for a meeting to be held on the 12th March 2008, the meeting must have been notified to creditors on or before the 19th February 2008. It is self-evident then, assuming the letter to be dated accurately, that it cannot have been served in time. Moreover, the evidence suggests that it was sent out on the 22nd. That at least is the date stamp on the letter addressed to the applicant’s solicitors. The only persons who had power to convene a meeting were Mr Gibson and Mr Tailby. No point is taken on Mr Gibson acting alone, but he had no power to convene a meeting on less than 21 days’ notice.

24. Moreover, it is said that the rules do not allow the convening of a meeting to remove a liquidator of the liquidator’s own motion. What is required is a request by 25%

in value of the company’s creditors, see rule 4.114-CVL(1). There are separate rules for convening meetings to accept a resignation.

25. There had in this case been a request from creditors, but for the purpose of removing Mr Gibson and Mr Stevens as joint liquidators. There was no request to remove Mr Tailby as liquidator. Mr Stevens was not a joint liquidator and therefore the creditors’ request was not sufficient to authorise the convening of a meeting to remove Mr Tailby. Liquidators do have general powers to summon meetings of creditors for the purpose of ascertaining their wishes, but that does not authorise them to summon a meeting for the purpose of removing one of their number where no request to that effect has been received. It is neither necessary nor desirable to read such a power into the rules, as any liquidator wishing to resign may summon a meeting for that purpose under rule 4.108, which contains accounting obligations and specific limits on the grounds for resignation, all of which can be evaded by dressing up a resignation as a removal. The only power of removal is that laid down in section 171, which requires a meeting to be summoned specially for that purpose in accordance with the rules. A pre-condition under the rules for calling such a meeting is a creditors’ request. That is not particularly surprising, because any liquidator who wishes to be removed can summon a meeting to receive his resignation, or (if there is some difficulty about that) can apply directly to the court, as sometimes happens in the case of block applications.

26. It may be that I need not reach a final view on the position under rule 4.114, because the meeting was held on short notice and the creditors were not given the requisite time to consider the matter in any event. To the extent, however, that it is necessary to reach a final view, the applicant’s point on rule 4.114 seems to me to be well founded. I would not regard the creditors in the circumstances as having had power to remove Mr Tailby from office as the meeting was not properly convened on a creditors’ request seeking his removal. Mr Gibson had no power to convene such a meeting except upon such a request.

27. It is said that there is no prejudice caused to anyone in this case and that therefore I am required to exercise the court’s remedial powers and direct that the appointment is not invalidated under rule 7.55, which provides that no “insolvency proceedings” shall be invalidated by any formal defect or irregularity, unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the court.

28. I do not agree. That rule applies only to formal defects and irregularities, and not to fundamental defects arising from the exercise of powers which the creditors or a creditors’ committee (as the case may be) do not have, or to the convening of a meeting which the liquidators have no power to convene.

29. Moreover, the expression “insolvency proceedings” has been construed restrictively so as not to extend to out of court appointments in the context of rule 7.55: Re Blights Builders Ltd [2007] BCC 712; Re G-Tech Construction Ltd [2007] BPIR 1275. Mr Gibson and Mr Stevens were appointed out of court, albeit by an administrator who had been appointed by the court. In the light of those authorities, I am not wholly persuaded that their appointments amounted to “insolvency proceedings” within rule 7.55, but again I probably do not need to decide that point. I myself took a different view as to the meaning of the expression “insolvency proceedings” in a different context in Gould and Anor v Advent Computer Training Ltd and Anor [2010] EWHC 459 (Ch), but the authorities under rule 7.55 were not cited to me, and my decision in that case would have been the same had I construed “insolvency proceedings” more narrowly, as there were other grounds for the decision.

30. I now turn to consider the position of Robin Hood. Mr Gibson explained in his witness statement and in his evidence that the sense of the meeting at which the administrators’ proposals for Robin Hood were considered was that, in the event of a CVL, the same liquidator should be in office for Robin Hood as for Tanit. Robin Hood had no creditors’ committee. As however the creditors’ committee of Tanit was choosing its liquidator, the Robin Hood liquidator would be identified in the same way. Assuming that that is what the Robin Hood creditors decided, as to which I shall return shortly, rule 2.33(2)(m) was contravened, for very much the same reasons as that rule was contravened in the case of Tanit. The creditors were entitled to nominate a different person within the prescribed period. What was substituted was a different process, exercisable outside that period. The affairs of the two companies were so intertwined that it was sensible to have the same liquidators for both, but the appointments are not validated on that ground. Moreover, the effect of the defective appointment of Mr Stevens was that the same liquidators were appointed: Mr Gibson and Mr Tailby.

31. I have assumed Mr Gibson has correctly explained the outcome of the Robin Hood creditors’ meeting in his evidence. I put it somewhat cautiously, because the minutes that Mr Gibson produced at the time seemed to record a different outcome: namely that the creditors’ representatives at the Robin Hood meeting were to determine both the appropriate exit route and, should liquidation be appropriate, the identity of the liquidators.

32. One of the factors which may have led to confusion is that the two meetings for both the Tanit and Robin Hood creditors were, for sensible reasons, held in the same room at the same time, although the minutes record 2 different meetings at different times. Amongst the creditors represented at that joint meeting were the people who became the creditors’ committee of Tanit and it may be that the reference in the Robin Hood minutes to the creditors represented at the meeting should have been a reference to the same people. I am prepared to accept that that is what was intended, as Mr Gibson explained in his evidence, but there was certainly no clear record of that in the minutes. It does not matter ultimately, because for the reasons I have given, the appointment of Mr Stevens was ineffective, and Mr Gibson and Mr Tailby became the liquidators of Robin Hood as well.

33. On the 21st December 2009, another creditors’ meeting was convened by Mr Gibson and Mr Stevens. This was a Robin Hood creditors’ meeting, the purpose of which was to confirm Mr Gibson and Mr Stevens as liquidators because of doubts that had by then been expressed over whether their previous appointment was valid. This was after these proceedings had been issued. Astonishingly, although the meeting was convened for 21st December 2009, just before Christmas, the envelope sending out the notice was franked second class and did not arrive, at least at the applicants’ solicitors’ offices, until 1st December 2009. It has not been established that any creditor received notice earlier than this and there is no reliable evidence of the date of actual posting. Again 21 clear days’ notice was required for which purpose the notice had to be served on or before 29th November. This meeting also appears, therefore, to have been convened on short notice.

34. There are other points. The resolution before the meeting was that Mr Gibson and Mr Stevens be confirmed as joint liquidators of Robin Hood. That was not enough, because Mr Tailby had to be removed and Mr Stevens had to be appointed in his place. Even if I treat the resolution as having that effect, there were mandatory requirements for the notice summoning the meeting under rule 4.114-CVL(2) to indicate that the removal of the liquidator was the purpose or one of the purposes of the meeting and to draw the attention of the creditors to section 173(2) of the Act with respect to the liquidator’s release. Under section 173(2)(a), a liquidator’s release on removal is automatic once notified to the registrar unless the creditors resolve against his release. It is clearly important that the creditors should know of this before they effect any removal.

35. This is another case where there was no request by the creditors as required by rule 4.114CVL(1). Moreover, the removal of Mr Tailby was not said to be the purpose of the meeting. There was no express proposal on this occasion, even for the avoidance of any doubt, to remove Mr Tailby. The creditors’ attention was not drawn to the release provisions of section 173. Indeed the notice only gave notice of the section 105 annual meeting.

36. It seems to me that those are serious defects which invalidate the confirmation of Mr Gibson and Mr Stevens as joint liquidators, and any implicit removal of Mr Tailby. It also seems to me that, were I required to be satisfied of serious prejudice under rule 7.55 (which, for similar reasons to those which I have given in relation to Tanit, is not in my judgment engaged) there is serious prejudice in this instance. Only one creditor turned up at the meeting , perhaps unsurprisingly given the short notice in the run up to Christmas, and, assuming that the resolution would otherwise be effective to remove Mr Tailby, his release seems to have passed through without comment. He has of course done nothing as liquidator, but that may itself conceivably be a ground for complaint, which might have affected any consideration of his release, had that been addressed.

37. In the result, Mr Gibson and Mr Tailby are in my judgment the liquidators of both Tanit and Robin Hood, and Mr Stevens is not.

38. What I now have to consider is whether or not Mr Gibson and Mr Tailby should be removed. As Mr Tailby does not recognise his status as a liquidator, it seems to me to be right to remove him, as he has been doing nothing. Moreover, so far as Mr Gibson is concerned, it became clear from his oral evidence that he also has been doing nothing of significance in the recent past. The reason for that is that the applicants have brought other proceedings against Mr Gibson and Mr Tailby (apart from these proceedings) for alleged breaches of duty and unfair harm as administrators under the provisions of Schedule B1. I am urged by Mr Pillai, who appeared for the Respondents, not to make any findings unless absolutely necessary to do so relating to those proceedings, which have yet to be heard. I agree with Mr Pillai’s approach and therefore the less I say about those proceedings, the better.

39. The other proceedings are nonetheless a fact which cannot be ignored. What Mr Gibson explained was that because of them, he has been taking a back-seat, although formerly he was in charge of investigations against Mr Chittenden and others.

40. This leads into what to my mind is a critical point. The applicants in this case, though they also claim to be creditors, are in reality bringing the proceedings to remove the liquidators as disappointed beneficiaries in Mr Chittenden’s estate, who were hoping to see a surplus in the liquidations. It is still not known for sure what the position will be, though the level of costs, both in the administrations and in the liquidations, have been such that a surplus for shareholders is looking improbable, unless those costs can in some way successfully be challenged, or the other proceedings succeed.

41. The applicants, it can be said, therefore have no real interest in these proceedings and their real object is to frustrate the investigations that are still ongoing against the late Mr Chittenden. It seems to me, given that there was initially thought to be a balance sheet surplus, that the applicants cannot be said to have no real interest in the liquidations. I say that after discounting much of the evidence before Mr Justice Warren, which it is now clear was overstated, to say the least. There is still the possibility of a surplus, as demonstrated by the fact that the applicants are bringing proceedings against Mr Gibson and Mr Tailby as the former administrators. As I have said, I should say as little as possible about those proceedings. No-one has however suggested that they are manifestly unsustainable and Mr Littman for the applicants demonstrated that there is, at least in some respects, some cause for concern. It would not however be appropriate for me to determine the extent if at all to which those concerns are justified. They relate not to the conduct of the liquidations, but to the conduct of the preceding administrations. There is some overlap because the validity of the appointments as liquidators and Tanit’s creditors’ committee is relevant to these proceedings. The rights and wrongs relating to the matters of substance in the other proceedings are not, however, relevant to what I have to decide in these proceedings.

42. Those other proceedings do however put Mr Gibson in a difficult position. Because of them, he says he has now taken a back-seat and that Mr Stevens is now taking on the role of considering further investigations into Mr Chittenden and proceedings against his estate. The creditors however, having already suffered quite substantial costs to date, are said to be reluctant to sanction any further proceedings against Mr Chittenden’s estate (a point I return to later). Substantial sums have been spent on investigations – initially (during the administration) on the administrator’s solicitors, then on an external forensic accountant – and then (following the liquidations) again on the same external forensic accountant. The investigations are apparently not complete.

43. The applicants obviously do have a potential ulterior motive, but that does not take away their proper motive, which is to try and transform what they perceive to have been a disaster into something which is more favourable to themselves as shareholders. If more favourable to themselves, it will also be more favourable to genuine creditors, including themselves (if the estate turns out to be owed money).

44. Some creditors, possibly on the basis of inaccurate information, have indicated some limited support for the present application. Other creditors have not or have kept their powder dry, especially in the case of HMRC. To the extent that I can infer that creditors generally accept the present situation, I have to take into account that the present situation as it appears to creditors generally is not what I have found to be the true position. The present situation is that Mr Gibson and Mr Stevens have been acting as the liquidators. I have found that Mr Stevens is not a liquidator. The liquidators are Mr Gibson and Mr Tailby. In the circumstances, given the slightly equivocal position of creditors, it seems to me that I should not treat this as a case where the creditors have already expressed a clear view in favour of the liquidators remaining in office. I remind myself, also, that Tanit’s creditors’ committee (though acting beyond its powers) chose a liquidator who was not a member of the same firm as Mr Gibson and Mr Tailby, and that all subsequent expressions of confirmation have been on the same basis.

45. In my judgment, Mr Gibson’s position is really quite impossible, and Mr Tailby’s position is no better and may be worse as he has not hitherto done anything as liquidator. The effect of having 2 firms is that Mr Stevens’ firm has taken over responsibility for the investigations against Mr Chittenden’s estate and liaising with creditors, while Mr Gibson’s firm is now acting essentially as a book-keeper and administrator. This is because Mr Gibson recognises that he cannot both contemplate proceedings against Mr Chittenden’s estate as liquidator whilst defending proceedings by the estate against him and Mr Tailby as administrators. He has been advised that this does not give rise to a conflict of interest as he has a good defence to the claims. That may well prove to be right, but the advice that he has received as liquidator is from the same solicitors who are acting in his defence in the administration litigation. The advice may also turn out to be wrong. Mr Stevens himself has not been independently advised. If there is a good claim against the former administrators, it is a claim that the liquidators could themselves pursue or support. It is in those circumstances self-evidently undesirable that the liquidators should be the same persons as the administrators.

46. I have to bear in mind of course that if I remove Mr Gibson, there may be adverse consequences in the liquidations of further costs and delay. As things stand, however, costs continue to accrue whilst nothing effective is happening in the liquidations. It does seem to me, in circumstances where Mr Gibson is paralysed from effective action as liquidator, and Mr Tailby has never acted in that capacity, that it is desirable to have a new office holder to be chosen by the creditors.

47. In reaching this conclusion, I am aware that the court should not lightly remove liquidators from office, and that I should have regard to any potential impact on Mr Gibson’s and Mr Tailby’s professional standing and reputation. I give that consideration due regard, but conclude that Mr Gibson cannot (as he effectively recognises) both contemplate proceedings as liquidator against Mr Chittenden’s estate, at the same time as defending as administrator proceedings brought by the estate. Still less can he be expected to give due consideration to whether the liquidators should support the proceedings against the former administrators, or bring proceedings of their own. I must however emphasise again that I am deciding nothing as to the merits of the proceedings brought by the estate against the former administrators. I do not, in removing Mr Gibson and Mr Tailby, intend any adverse comment on their professional standing and reputation generally. The need to remove them arises from the highly unusual circumstances of this case, which leaves them both, in my judgment, in a position which is both unenviable and impossible.

48. It is also desirable, as Mr Gibson’s solicitors are the same both in this application and in the litigation against the former administrators, that there should be no hint of the creditors in the liquidations paying, or even suspecting that they might be paying, for activities which are really being undertaken for the benefit of Mr Gibson and Mr Tailby as former administrators. I say that without any disrespect towards the solicitors in question, who I am sure would be careful to apply all necessary distinctions. Nonetheless they are the same solicitors, and there is inevitably some overlap between the issues in the liquidations and the issues in the administration litigation. As I have said, the solicitors have apparently advised Mr Gibson and Mr Tailby that there is nothing in the claim being brought against them, but they have not applied to strike the proceedings out.

49. I have had regard to the guidance set out in the well-known cases of Keypack Homecare Ltd [1987] BCL 409 and AMP Music Box Enterprises Ltd v Hoffman [2002] BCC 996, as well as the other cases referred to in the skeleton arguments. The burden is of course on the applicants to show “due cause” why the office holder should be removed. That must be measured by reference to the interests of the liquidation proceedings. Misconduct on the part of the liquidators need not be shown, though removal will usually involve some criticism. It is in the interests of these insolvency proceedings that they be progressed efficiently and effectively. The companies were placed into administration 4 years ago and into liquidation not that long thereafter. It seems to me that the liquidations should be more advanced than they presently are. What appears to be holding things up is the interaction between the investigations against Mr Chittenden’s estate and the pending proceedings against the former administrators. I have to take into account also that appointments of new liquidators are likely to have costs consequences of their own. However, as all forensic work to date has been outsourced, that may not necessarily be as significant as in other cases. The present liquidations gather costs even when little or nothing is being done. The applicants have not rushed into this application, no doubt conscious that the liquidators (whoever they are) need to consider the investigations against Mr Chittenden’s estate, but I think they are entitled to say that these investigations have not been pursued with much in the way of vigour and should now be reaching a conclusion. It was (as previously mentioned) said by Mr Gibson that there are funding issues in taking the claim against Mr Chittenden’s estate forward, and the creditors are reluctant to sanction further action at this stage (though technically sanction is not required). I was a little sceptical about that, as the assets recovered, though lower than hoped for (for what for present purposes I am prepared to assume are good reasons) seem adequate for the purpose of taking any claim forward, if appropriate. As it happens, the impression I got from Mr Gibson is that nothing would happen until the present application to remove the liquidators is concluded, as that is where all the attention has been focussed.

50. I fear that nothing substantial will happen under Mr Gibson’s stewardship until the other proceedings are concluded either. It is difficult to see why the conclusion of the proceedings before me should remove the inhibitions that Mr Gibson now feels. In my judgment, despite the potential for further costs and delay, I am on balance persuaded that the removal of the present liquidators is likely to be to the advantage of creditors. The creditors will have the right to choose a new liquidator or liquidators, who will not be inhibited by the proceedings against the administrators. If the creditors want Mr Stevens to be appointed, that is up to them. I do however consider that the continuation in office of Mr Gibson alone or with Mr Tailby is undesirable and I shall therefore remove them both.

End of Judgment.