Invalid Administrators' Appointment: Currie & Anor v Fission Recruitment Services Ltd [2026] EWHC 1369 (Ch)

The court held that the defect in question went to the very existence of the power to appoint administrators and therefore resulted in a void appointment which could not be cured under Rule 12.64 of the Insolvency (England & Wales) Rules 2016 ("Insolvency Rule 12.64").

Background

A notice of intention to appoint administrators was filed on behalf of the company directors and it was anticipated that an offer would be made by a third party to purchase the business and certain assets of the company during the moratorium period. 

A draft notice of appointment had been circulated and signed by the company director but the anticipated offer for the purchase of the company’s business and certain assets could not be completed prior to the expiry of the first interim moratorium. 

A second notice of intention to appoint was provided to the director. 

The director returned what he believed to be the second notice of intention to appoint. However, it was in fact a hybrid document comprising the first page of the signed notice of appointment and the remaining pages of the second notice of intention to appoint.

The proposed administrators’ solicitors did not notice the error and filed the hybrid document, believing it to be the second notice of intention. The court sealed the hybrid document later that day. 

The proposed administrators’ solicitors served the hybrid document on the qualifying floating chargeholder (still believing the hybrid document to be the second notice of intention) at which time, the chargeholder’s solicitors notified the proposed administrators’ solicitors of the error.

The proposed administrators’ solicitors drafted a letter to the Court explaining the error and also re-filed the correct version of the second notice of intention under a new case number to correct the previous error. However, the Court rejected the subsequent filing because the earlier hybrid document appeared on its face to be a notice of appointment, with the consequence that the company appeared already to be in administration.

An urgent application was made seeking to declare the appointment void, noting concerns of an invalid appointment due to (1) the filing being made after the period of the first notice of intention had expired, and (2) without the administrators having provided consents to act.  The purpose of the application was to enable a valid second notice of intention to appoint to be filed accordingly and for a valid re-appointment to be made at a suitable later date.

Procedural Defects, Power to Appoint and Substantial Injustice

Late filing of a notice of appointment: the Court held that the late filing of a notice of appointment after the expiration of the first interim moratorium does not in and of itself render the appointment a nullity as this is a defect that can be cured by Insolvency Rule 12.64 in appropriate circumstances. 

Failure to file administrators’ consents to act and the power to appoint: the Court held that the failure to file the administrators’ consents to act rendered the appointment a nullity as the requirement for a notice of appointment to be accompanied by the administrators’ consents to act had not been met. The Court noted that the failure to file the administrators’ consents to act goes to the very core of the power to appoint and is not merely procedural in nature. 

Substantial injustice: The Court observed that the requirement for proposed administrators to consent to act is a fundamental statutory safeguard. Without such consent there can be no assurance that the proposed administrators have accepted the appointment or that the statutory safeguards associated with their consent have been satisfied, including the requirement that the purpose of administration is reasonably likely to be achieved. The Court considered that permitting such an appointment to stand would cause substantial injustice both to the proposed administrators and to creditors.

Outcome

Accordingly, the court ordered that the appointment was null and void; that the hybrid document filed in error was to be removed from the Court file; and that a further notice of intention to appoint could be filed, disregarding the hybrid document.

Key Takeaway

The decision serves as an important reminder that not every defect in the administration process can be cured by the court. 

Whilst previous authorities demonstrate a willingness of the court to remedy procedural irregularities in appropriate circumstances, this case illustrates that the court will draw a clear distinction between defects in procedure and defects which go to the existence of the statutory power itself. 

Practitioners should therefore continue to exercise particular care in ensuring that all statutory preconditions to appointment, including the filing of valid consents to act, have been satisfied before relying upon an out-of-court appointment.