DISMISSAL OF PUBLIC-INTEREST WINDING-UP PETITIONS IN SECRETARY OF STATE V PAG ASSET PRESERVATION LTD [2019] EWHC 2890 (CH)

On 30 October HHJ Stephen Davies handed down his judgment in The Secretary of State for Business, Energy and Industrial Strategy v PAG Asset Preservation Ltd [2019] EWHC 2890 (Ch). 

The Secretary of State for Business, Energy and Industrial Strategy had presented petitions under s.124A of the Insolvency Act 1986 to wind up two companies – PAG Asset Preservation Limited (“PAGAPL”) and MB Vacant Property Solutions Limited (“MBV”) (collectively “the Companies”) – on public interest grounds.

The Companies operated schemes for the avoidance or mitigation of national non-domestic rates (colloquially known as ‘business rates’). It was alleged by the Secretary of State that the schemes in question misused or abused or subverted the insolvency legislation, so that (following Secretary of State for Business Innovation and Skills v PAG Management Services Ltd [2015] EWHC 2404 (Ch)),  the Companies ought to be wound up.

HHJ Stephen Davies dismissed the petitions and refused to wind up the Companies.

David Chivers QC (leading Nicholas Trompeter at Selborne Chambers) appeared for the Companies, instructed by Jonathon Crook of Gorvins Solicitors.

David Chivers QC (leading Philip Gillyon), also instructed by Jonathan Crook, had previously succeeded at first instance and on appeal in opposing a public interest winding up petition brought by the Secretary of State against Amway (UK) Limited – see Secretary of State for Business, Enterprise and Regulatory Reform v Amway (UK) Limited [2009] EWCA Civ 32.  

It is rare for the Secretary of State to fail to wind up a company on a petition under s. 124A. PAG Asset Preservation Limited is a timely reminder that the Court will look critically at the case advanced by the Secretary of State and will determine for itself the question of public interest.

Barristers
David Chivers QC