Palmer (t/a Cotswold Stone Quarries) v Ingram

A court may authorise a receiver to commence proceedings in the name of a dissolved company where the receiver is taking steps to restore it and restoration will retrospectively validate proceedings begun while it was struck off. The issue is one of supervisory discretion. An appellate court should not interfere with the judge’s assessment of the evidence or delay absent an error of principle. Authorising proceedings against a private defendant does not itself engage foreign state immunity. If a foreign state later claims an interest, the court can address the statutory immunity provisions then. Proceedings concerning the state’s interest in property held as bona vacantia are not immune.

Palmer (t/a Cotswold Stone Quarries) v Ingram concerned an appeal from an order of Foskett J dated 25 April 2008. The order permitted a receiver appointed under a confiscation order to bring proceedings in the names of persons including an Irish company that had been dissolved. The appellant argued that the company could not sue, that the order engaged foreign state immunity, that there was insufficient evidence of restoration, and that delay should have prevented the order. The company was later restored to the Irish register. The central issue was whether the judge had been entitled to authorise the proposed proceedings in those circumstances.

Appeal dismissed. Arden LJ delivered the judgment, with which Dyson LJ and Waller LJ agreed.

1. The evidence of Irish law established that restoration to the register placed the company and other persons in the same position as if it had continued in existence and had never been dissolved. Proceedings begun while the company was struck off would therefore continue as if it had never been struck off.
2. The judge was entitled to authorise the receiver to begin proceedings in the company’s name because he had been informed that the receiver would take steps to restore it. The anticipated restoration would validate the proceedings retrospectively.
3. No state-immunity issue arose because the order authorised proceedings against Mr Palmer, not proceedings against the Irish state. If the Minister for Finance later made a claim, the court hearing the proceedings would have to consider section 6(4) of the State Immunity Act 1978. In any event, section 6(2) provided that the state was not immune in proceedings relating to its interests in property held as bona vacantia.
4. Whether the evidence gave a sufficient prospect of restoration was a matter for the judge’s discretion. The receiver was an officer of the court, the issue had been fairly raised, and the judge was entitled to conclude that the order was appropriate.
5. The judge had considered the receiver’s delay. The weight to be given to that factor was also discretionary. No error of principle was shown, so the appeal was dismissed.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 947, the appeal from Foskett J’s order was dismissed.
• Queen’s Bench Division, Administrative Court: Foskett J ordered that the receiver be permitted to bring proceedings in the names of the relevant claimants, including the dissolved Irish company, subject to restoration where necessary.