David Wolfson QC and James Edelman represented the Applicants for permission to appeal, out of time, against an order recognising a German administrator and giving him powers to act pursuant to the Insolvency Act. The order of the Registrar, made in 2008, was a rare case of a foreign Administrator being granted recognition in England, at common law, for the purposes of bringing substantive proceedings to claw back payments made to investors in a foreign insolvency. The decision has since been cited by leading insolvency texts. David Wolfson QC and James Edelman successfully argued that leave to appeal should be granted on the basis that the grounds upon which the order had been obtained were not, before proceedings were commenced, disclosed to potentially affected individuals.
Mr Justice Sales held that the Applicants had not had a proper chance to consider the Registrar's order and the content of the Registrar's judgment until the Administrator provided them with a copy. The order, obtained without notice, had the potential to have a direct effect and impact on the Applicants. That being so, it was incumbent upon the Administrator to give full disclosure of the basis upon which the order had been made, of the judgment and order itself and of any other further relevant material. Mr Justice Sales rejected the argument for the Administrator that he was not required to disclose a copy of the order, holding that it was not for the Applicants to trawl through law reports before the commencement of proceedings in order to ascertain whether there was an order of direct relevance to them. In relation to the merits, the Judge held that the Applicants had a sufficiently arguable case in a developing area of law which justified and necessitated further exploration of the issue concerning the boundaries of the principle in Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors of Navigator Holdings Plc [2006] UKPC 26, [2007] 1 AC 508, and the operation of the principle of universality in insolvency proceedings.
David Wolfson QC and James Edelman represented the Applicant and were instructed by Kennedys.