In the matter of Wilton UK Ltd v. Shuttleworth and Others  EWHC 911 (Ch) His Honour Judge Davis-White QC (sitting as a Judge of the Chancery Division) had to decide whether or not to grant the Claimant permission to continue company derivative proceedings pursuant to s.263 Companies Act. HHJ Davis-White QC’s judgment approaches the question in a structured manner which may be instructive in future applications for retrospective permission. The matter was of particular significance as there were arguments that elements of the Claimant’s derivative claim would fall outside the limitation period if they had to re-issue.
HHJ Davis-White QC first considered whether or not he would have granted prospective permission to issue the claim (he would) and whether or not he had the jurisdiction to grant retrospective permission (he did). Being satisfied on those points, HHJ Davis-White QC rejected the Claimant’s argument that the relevant test to be applied was analogous to CPR 6.15(2) (the Court’s power to order steps already taken by alternative methods are sufficient to constitute good service) and accepted the Defendant’s argument that the “Denton” test for relief from sanction ought to be applied.
Ultimately relief, in the form of retrospective permission, was granted, as although the breach was serious and significant and there was no good reason for the breach, the breach was not an “abusive” one and the Defendants had not been much harmed by the delay in obtaining permission so it was appropriate in all the circumstances. Despite granting permission, HHJ Davis-White QC cautioned that this judgment should be viewed as a warning against any future attempts to subvert the statutory process by not obtaining permission in the proper manner.