Bank of Ireland (UK) Plc v Colliers International UK Plc

Bank of Ireland (UK) Plc v. Colliers International UK Plc

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Factual and Procedural Background

The Plaintiff, the Governor and Company of the Bank of Ireland and its wholly owned English subsidiary, Bank of Ireland (UK) PLC, applied for retrospective permission to institute legal proceedings against Defendant Company A, which was in administration. The Defendant Company A is a firm of property valuation surveyors that prepared valuation reports in 2006 for properties let to companies in a group that later went into administration in 2011. The Plaintiff started investigating possible negligence in the 2006 valuations following reduced property values in 2011. The Defendant Company A entered administration in March 2012, and the Plaintiff notified the administrators of potential claims in May 2012. After a series of standstill agreements to prevent limitation expiry, the Plaintiff issued ten claim forms in September 2012 claiming damages for negligence. The administrators did not oppose the application for retrospective permission.

Legal Issues Presented

Whether the court has jurisdiction under paragraph 43(6) of Schedule B1 to the Insolvency Act 1986 to grant retrospective permission for the commencement of legal proceedings against a company in administration.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Saunders [1997] Ch 60	Established that proceedings commenced without permission under insolvency provisions are not a nullity and that retrospective permission can be granted.	The court endorsed this decision as correctly decided and authoritative on retrospective permission.
Wilson v Banner Scaffolding Limited (The Times 22 June 1982)	Held that proceedings commenced without permission against a company in compulsory liquidation were a nullity.	The court rejected this view as insufficient and outdated in light of subsequent authority.
Re National Employers Mutual General Insurance Association Limited [1995] 1 BCLC 232	Adopted the view that proceedings without permission are a nullity.	The court did not follow this precedent, preferring Re Saunders instead.
Re Taylor [2006] EWHC 3029 (Ch), [2007] Ch 150	Rejected retrospective permission for proceedings commenced against a bankrupt without prior leave.	The court considered this decision but found it unpersuasive and not to be followed.
Godfrey v Torpy [2007] BPIR 919	Preferred Re Saunders and supported retrospective permission.	Used as supporting authority for the court's conclusion.
Bank of Scotland PLC v Breytenbach [2012] BPIR 1	Unopposed application decision endorsing retrospective permission.	Demonstrated continuing judicial preference for Re Saunders.
Seal v Chief Constable of South Wales Police [2007] UKHL 31, [2007] 1 WLR 1910	Held proceedings commenced without required permission under Mental Health Act were a nullity due to legislative context.	Distinguished from insolvency cases; helped frame the analysis on whether proceedings without permission are nullities.
Rendall v Blair 45 Ch D 139	Considered similar permission requirements in charity law.	Referenced to highlight differences in statutory context affecting nullity of proceedings.
Adorian v Commissioner of Police of the Metropolis [2009] EWCA Civ 18, [2009] 1 WLR 1859	Held failure to obtain prior permission did not nullify proceedings under Criminal Justice Act 2003.	Supported the court's approach favoring substance over form and against nullity.
Boyd v Lee Guinness Limited [1963] NI 49	Interpreted permission requirements in winding-up proceedings.	Used to illustrate that proceedings may be improperly brought without permission but not necessarily nullities.
The Brabo [1949] AC 326	Supported the proposition that proceedings can be treated as improperly brought without being nullities.	Referenced to counter the argument that absence of permission renders proceedings void.

Court's Reasoning and Analysis

The court analysed the statutory framework under the Insolvency Act 1986, particularly paragraph 43(6) of Schedule B1, section 130(2), and section 285(3), which require permission to commence proceedings against companies or individuals in insolvency. The court identified a key issue: whether retrospective permission can be granted for proceedings commenced without prior leave.

Historical case law presented conflicting views. Earlier decisions, such as Wilson v Banner Scaffolding Limited and Re National Employers, treated such proceedings as nullities. However, Re Saunders, after extensive consideration of UK and Commonwealth authorities, rejected this view and held that proceedings without prior permission are not nullities and that retrospective permission may be granted. The court preferred Re Saunders over contrary decisions like Re Taylor, which had been criticized for disregarding practical consequences and relevant legal principles.

The court distinguished the insolvency context from other statutory regimes, such as mental health law in Seal, where the legislative history and purpose justified treating proceedings without permission as nullities. In insolvency law, the permission requirement aims to centralise control of asset distribution under the court's supervision rather than to protect defendants by invalidating proceedings.

The court noted that administrators may grant consent retrospectively, further supporting the availability of retrospective permission. The court also emphasised the practical importance of allowing retrospective permission to avoid unjust outcomes and to facilitate the proper administration of insolvency proceedings.

Ultimately, the court resolved the uncertainty by affirming the jurisdiction to grant retrospective permission under the relevant insolvency provisions, aligning with the reasoning in Re Saunders and subsequent judicial preference.

Holding and Implications

The court GRANTED retrospective permission for the commencement of the proceedings against the company in administration. The permission was subject to the condition that the Plaintiff may not enforce any judgment without the court's further permission.

This decision directly allows the Plaintiff to pursue negligence claims despite the late application for permission and clarifies the legal principle that retrospective permission under the Insolvency Act 1986 is available. The ruling resolves previous judicial uncertainty but does not establish a new precedent beyond affirming the correctness of Re Saunders. No broader implications beyond the parties are discussed.

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