Anthony Alan Gladwin v RSM UK Restructuring Advisory LLP & Ors (Re Killean Estate Limited)

A claim is liable to be struck out where a claimant fails to comply with an unless order requiring properly particularised pleadings, an application to amend the claim and any required statutory permission. Relief from sanction is assessed under Civil Procedure Rules 1998, rule 3.9, applying the three-stage approach in Denton. A litigant in person is not entitled to a lower standard of compliance. Where the proposed claim is bound to fail, that merits assessment may materially affect the relief application. The court may also refuse an adjournment intended to facilitate a late application where it would not further the overriding objective. A member without a pecuniary interest cannot ordinarily require an examination of administrators’ conduct, and former administrators may not be sued under paragraph 75 of Schedule B1 without permission.

The claimant, the sole director and shareholder of Killean Estate Limited, brought proceedings against RSM UK Restructuring Advisory LLP concerning the administration and sale of the company’s estate. He later sought to join three former administrators, amend his pleadings and obtain damages. The company was dissolved, the former administrators had been discharged from liability, and no permission application under paragraph 75(6) of Schedule B1 to the Insolvency Act 1986 had been made.

By an unless order dated 15 August 2023, the claimant was required to file compliant amended points of claim, apply to amend the claim form and join the correct defendants, and apply for statutory permission by 5 September 2023. The central issues were whether the claim had been struck out by non-compliance, whether an adjournment or relief from sanction should be granted, and whether the claim and related applications were in any event legally viable.

1. Disposition. The claim stood struck out by operation of the unless order. The damages, joinder, amendment and adjournment applications were dismissed.
2. Non-compliance. The claimant failed to file properly particularised points of claim bearing a statement of truth, failed to apply to amend the claim form and join the correct defendants, and failed to apply under paragraph 75(6) of Schedule B1 to the Insolvency Act 1986 for permission to proceed against former administrators.
3. Relief from sanction. Applying CPR 3.9 and Denton v TH White Ltd [2014] EWCA Civ 90, the breach was serious and significant, no good reason had been shown, and the circumstances favoured enforcement of the order. The claimant’s status as a litigant in person did not lower the required standard of compliance: Elliott v Stobart Group Ltd [2015] EWCA Civ 449 and Barton v Wright Hassall LLP [2018] 1 WLR 1119. The claim was also bound to fail, making its merits relevant at the third Denton stage.
4. Substantive defects. RSM had never been an administrator and had no relevant juridical relationship with the claimant. The former administrators had been discharged under paragraph 98 of Schedule B1. Any application under paragraph 75 required permission, and the claimant lacked a pecuniary interest because the secured creditor remained unpaid in full. Re Coniston Hotel (Kent) LLP (in liquidation) [2014] EWHC 1100 (Ch) and Katz v Oldham [2016] BPIR 83 supported that conclusion.
5. Amendment. The proposed amended claim lacked a real prospect of success. It was incoherent, insufficiently particularised and unsupported by evidence. The applicable approach was stated in SPI North Ltd v Swiss Post International (UK) Ltd [2019] EWHC 2004 (Ch) and Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33.