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CE-Filing nightmare not so scary if you act quickly…

20 February 2020. Published by Nick Bird, Partner and Sally Lord, Senior Associate

We all know that CE-filing at court can sometimes be difficult, particularly when you are trying file documents close to the deadline. Whilst this case involves the filing of a Notice of Appointment of Administrators, this case may give solicitors comfort if something similar happens in litigation and a genuine mistake has been made in the e-filing process which, on the face of it, would mean that the document was filed out of time.

In In the Matter of Carter Moore Solicitors Limited [2020] EWHC 186 (Ch) the administrators of a company sought to determine whether their appointment was valid. The case turned on what date the notice was filed.

 

A Notice of Appointment Administrators (NOA) was filed at court on behalf of the Company's directors. The form was submitted via the CE Filing system at 14.17 on Friday 24 January 2020. Unfortunately, the wrong drop-down box was selected and "new case" was chosen instead of "existing case".

 

At 16.04 that day, the court clerk sent an email stating the NOA had been rejected and that it needed to be re-filed under "existing case". The NOA was re-submitted at 17.06 using the correct box but, because the court was then closed to the public, the court gave the NOA the date 27 January 2020.

 

Under the relevant insolvency rules, the NOA must be filed within 10 business days of the Notice of Intention to Appoint Administrators having been made, which in this case was Monday 13 January 2020. The NOA was therefore out of time and could not be effective.

 

Held

 

In its judgment, the court made it clear that this case was not subject to the new court practice in relation to out of hours appointments of administrators (announced on 30 January 2020 in which a High court Judge will make the determination regarding the validity of the papers and the correct date and time).

However, the court does have the power under Civil Procedure Rule 3.10(b) and Practice Direction 51O para 5.3(2) to remedy errors of procedure. The court decided to exercise its power and deemed the NOA as being validly filed at 14.17 on 24 January 2020.

 

In reaching its decision, the court gave consideration to various factors. One of these was that by selecting 'new case' rather than 'existing case' had the result that a larger fee was payable and that the case number allocated was not connected to the NOI. It was not therefore deemed an attempt to pay a lesser fee and it was clear from the face of the documents, the two were connected.

 

The timing of the submissions was also important. When the error with the filing was realised, it was corrected within 3 minutes by the second filing, which was made only 7 minutes after the court had closed to the public.

 

Conclusion

 

This case provides comfort and helpful guidance on what to do when a procedure error with e-filing is made. The most important factor being to act quickly. The Judge may have reached a different decision if the second filing had not taken place so promptly.

 

The importance of a party's conduct upon realisation of a procedural error cannot be stressed enough and is always considered by the court when reaching a decision.