[1] In terms of which Court to apply to, Insolvency Rules 2016, r.10.4 is entitled 'Application to set aside statutory demand' and r.10.4(4) reads:

'The application must be made to the court or hearing centre-

(a) determined in accordance with rule 10.48; or

(b) to which rule 10.11(1) requires a petition to be presented if-

(i) the creditor serving the statutory demand is a Minister of the Crown or a government Department,

(ii) the debt in respect of which the statutory demand is made, or part of it equal to or exceeding the bankruptcy level (within the meaning of section 267), is the subject of a judgment or order of a court, and

(iii) the statutory demand-

(aa) specifies the date of the judgment or order and the court in which it was obtained, and

(bb) indicates the creditor’s intention to present a bankruptcy petition against the debtor in the High Court or the County Court at Central London as the case may be.'

Taking those provisions in turn:

Insolvency Rules 2016, r.10.48 is entitled 'Court to which applications are to be made' and reads:

'(1) An application to the court under this Chapter must be made to the debtor’s own hearing centre where the debtor is resident in England and Wales.

(2) If the debtor is not resident in England and Wales but was resident or carried on business in England and Wales within the six months immediately preceding the making of the bankruptcy application, an application may be made to the debtor’s own hearing centre or to the High Court.

(3) In this rule the debtor’s own hearing centre is-

(a) where the debtor has carried on business in England and Wales within the six months immediately preceding the filing with the court of the application, the hearing centre for the insolvency district where for the longest period during those six months-

(i) the debtor carried on business, or

(ii) the principal place of business was located, if business was carried on in more than one insolvency district; or

(b) where the debtor has not carried on business in England and Wales within the six months immediately before making the application to the court, the hearing centre for the insolvency district where the debtor resided for the longest period during those six months.

(4) Where, for whatever reason, it is not possible for the application to be made to the debtor’s own hearing centre, the applicant may, with a view to expediting the application, make the application-

(a) where paragraph (3)(a) applies, to-

(i) the hearing centre for the insolvency district in which the debtor resides, or

(ii) whichever court or hearing centre is specified in Schedule 6 as being the nearest full-time court or hearing centre in relation to(aa) the hearing centre in paragraph (3)(a), or

(bb) the hearing centre in paragraph (4)(a)(i); or

(b) where paragraph (3)(b) applies, whichever court or hearing centre is specified in Schedule 6 as being the nearest full-time court or hearing centre in relation to the court in that paragraph.

(5) The application must contain sufficient information to establish that it is brought in the appropriate court or hearing centre.'

Insolvency Rules 2016, rule 10.11(1) is entitled 'Court in which petition is to be presented' and reads:

'(1) Where the proceedings are allocated to the London Insolvency District under rule 12.5(a)(i) to (iv) or (b), the creditor must present the petition to-

(a) the High Court where the debt is £50,000 or more; or

(b) the County Court at Central London where the debt is less than £50,000.

(2) Where the proceedings are allocated to the London Insolvency District under rule 12.5(a)(v), (c) or (d), the creditor must present the petition to the High Court.

(3) Where the debtor is resident in England and Wales and the proceedings are not allocated to the London Insolvency District, the creditor must present the petition to the debtor’s own hearing centre.

(4) The debtor’s own hearing centre is–

(a) where the debtor has carried on business in England and Wales within the six months immediately preceding the presentation of the petition, the hearing centre for the insolvency district where for the longest period during those six months–

(i) the debtor carried on business, or

(ii) the principal place of business was located, if business was carried on in more than one insolvency district; or

(b) where the debtor has not carried on business in England and Wales within the six months immediately preceding the presentation of the petition, the hearing centre for the insolvency district where the debtor resided for the longest period during those six months.

(5) If the debtor is not resident in England and Wales but was resident or carried on business in England and Wales within the six months immediately preceding the presentation of the petition and the proceedings are not allocated to the London Insolvency District, the petition may be presented either to the debtor’s own hearing centre or to the High Court.

(6) Unless paragraph (2) applies, where to the petitioner’s knowledge there is in force for the debtor an IVA under Part 8 of the Act, the petition must be presented to the court or hearing centre-

(a) to which the nominee’s report under section 256 was submitted;

(b) to which an application has been made, where a nominee has made a report under section 256A(3); or

(c) as determined under paragraphs (1) to (5) in any other case.

(7) The petition must contain sufficient information to establish that it is presented in the appropriate court and, where the court is the County Court, the appropriate hearing centre.'

[2] Insolvency Rules 2016, r.10.4 is entitled 'Application to set aside statutory demand' and r.10.4(1) reads:

'The debtor may apply to the court for an order setting aside the statutory demand.'

[3] Insolvency Rules 2016, r.10.4 is entitled 'Application to set aside statutory demand' and r.10.4(2) reads:

'The application must be made within 18 days from the date of the service of the statutory demand.'

Typically it is 18 days. See footnote for where the statutory demand is served out of the jurisdiction.

[4a] Insolvency Rules 2016, r.10.1 is entitled 'The statutory demand (section 268)' and r.10.1(10) reads:

'When the statutory demand is to be served out of the jurisdiction, the time limits of 18 days ... referred to in sub-paragraphs 10.1(1)(m) ... above must be amended as follows

(a) for any reference to 18 days there must be substituted the number of days which is the appropriate number of days set out in the table accompanying the Practice Direction supplementing Section IV of CPR Part 6 plus 4 days...'

Rule 10.1(1)(m), with the start of r.10.1(1) reads:

'A statutory demand under section 268 must contain-

...

(m) a statement that any application to set aside the demand must be made within 18 days of service on the debtor;'

The effect of this is that a statutory demand which is to be served out of the jurisdiction, will not contain reference to 18 days, but will specify a different number of day (as applicable, depending on the jurisdiction the statutory demand is to be served in, and the relevant figure in the table accompanying Practice Direction supplementing Section IV of CPR Part 6 - plus 4 days).

Seemingly, the effect of this is that a statutory demand set aside application made within time permitted by r.10.1(1)(m), will be within time for the purposes of r.10.4(2). However, the law would have been clearer on this had r.10.1(10) had made explicit reference both to: (1) r.10.1(1)(m) (which it does do); and (2) r.10.4(2). The position is made clear though from:

(1) The Practice Direction: Insolvency Proceedings [2020] BCC 698 ('Insolvency PD') that the position is made clear. In Insolvency PD, paragraph 11.4.2 provides (so far as relevant):

'A debtor who wishes to apply to set aside a statutory demand after the expiration of 18 days, or if service is out of the jurisdiction, after the expiration of the time limit specified by r.10.1(10)(a) from the date of service of the statutory demand, must apply for an extension of time within which to apply to set aside the statutory demand.'

In other words, extension of time are only required where the statutory demand was served out of the jurisdiction, where the extended time specified in the statutory demand under r.10.1(10)(a), was not met by the statutory demandee/applicant.

(2) Dissington Lending Co Ltd (also known as Rankin v Dissington Lending Co Ltd) [2021] EWHC 172 (‘Dissington’), where the statutory demandee/applicant Mr Rankin was in Gibraltar (so outside the jurisdiction). In Dissington, there was:

(a) an initial statutory demand, which was abandoned/withdrawn, for non-compliance with r.10.1(10) - see paragraph 1 of Dissington; then

(b) a second statutory demand (which did comply with r.10.1(10)). This was served on Mr Rankin in Gibraltar. It was r.10.1(10) compliant because this second statutory demand stated (amongst other things) that '...any application to set it aside would have to be made within 35 days of the date of service on the Applicant...' (paragraphs 1 and 2). This (compliant) statutory demand was then the subject to a set aside application. Deputy ICC Judge Kyriakides said as to the timing for this set aside application, at paragraph 2:

'With the [second statutory demand] having been served on or about [23.1.20], the Applicant had until [27.2.20] to apply to set it aside.'

This confirms, as one would expect, that the deadline specified in the statutory demand is the deadline that applies to any application to set it aside.

Separately, readers interested in service out of the jurisdiction of a statutory demand, will be interested in the other provisions of Insolvency Rules 2016, r.10.1. For completeness therefore, Insolvency Rules 2016, r.10.1 reads (in its entirety):

'When the statutory demand is to be served out of the jurisdiction, the time limits of 18 days and 21 days referred to in sub-paragraphs 10.1(1)(m) and (n) above must be amended as follows

(a) for any reference to 18 days there must be substituted the number of days which is the appropriate number of days set out in the table accompanying the Practice Direction supplementing Section IV of CPR Part 6 plus 4 days; and

(b) for any reference to 21 days there must be substituted the number of days which is the appropriate number of days set out in the table accompanying the Practice Direction supplementing Section IV of CPR Part 6 plus 7 days.'

[4b] As to:

(1) if - it is necessary to consider Insolvency Rules 2016, r.10.2 entitled 'Service of statutory demand', which reads:

'A creditor must do all that is reasonable to bring the statutory demand to the debtor’s attention and, if practicable in the particular circumstances, serve the demand personally.'

See (1) Emmanuel v Revenue and Customs Commissioners [2017] EWHC 1253 (Ch); [2017] BPIR 1182; and (2) Emmott v Michael Wilson & Partners Ltd [2022] EWHC 2682 (Ch) ('Emmott')

(2) when - In Emmott v Michael Wilson & Partners Ltd [2022] EWHC 2682 (Ch) ('Emmott') before Deputy ICC Judge Kyriakides, the statutory demander/respondent contended that service of the relevant statutory demand ('Emmott SD') was effective on 31.3.21 by the following means (paragraph 6.1. and 6.2):

'by sending a copy of it and an accompanying letter on [31.3.23] by first class post addressed to Mr Emmott at [address] ("City Road"), being the service address shown at Companies House for Mr Emmott in his capacity as a director of Scythian Mining Group Limited;

by sending a copy of the Statutory Demand and an accompanying letter on [30.3.21] by first class post to [address] ("The Courtyard").

[The question of how the Emmott SD dated 31.3.21 was sent by post on 30.3.21, the day before, shall be put to one side]

In addressing the contention that service of the Emmott SD was effective on 31.3.21, the Deputy ICC Judge said, at paragraphs 9 to 11:

'Rule 10.2 of the Insolvency (England and Wales) Rules 2016 ("IR") provides that a creditor must do "all that is reasonable to bring the statutory demand to the debtor's attention and, if practicable in the particular circumstances, serve the demand personally ".

Paragraph 11.2 of Practice Direction: Insolvency Proceedings [2020] BCC 698 ("IPD") provides:

"Rule 10.2 applies to service of a statutory demand whether within or out of the jurisdiction. If personal service is not practicable in the particular circumstances, a creditor must do all that is reasonable to bring the statutory demand to the debtor's attention. This could include taking those steps set out at para.12.7 below which justify the court making an order for service of a bankruptcy petition other than by personal service. It may also include any other form of physical or electronic communication which will bring the statutory demand to the notice of the debtor."

Paragraph 12.7 of the IPD states:

"12.7 Service of bankruptcy petitions other than by personal service

Where personal service of the bankruptcy petition is not practicable service by other means may be permitted. In most cases, evidence that the steps set out in the following paragraphs have been taken will suffice to justify an order for service of the bankruptcy petition other than by personal service:

(1) One personal call at the residence and place of business of the debtor. Where it is known that the debtor has more than one residential or business addresses, personal calls should be made at all the addresses.

(2) Should the creditor fail to effect personal service, a letter should be written to the debtor referring to the call(s), the purpose of the same, and the failure to meet the debtor, adding that a further call will be made for the same purpose on the [day] of [month] 20[] at [] hours at [place]. Such letter may be sent by first class prepaid post or left at or delivered to the debtor's address in such a way as it is reasonably likely to come to the debtor's attention. At least two business days' notice should be given of the appointment and copies of the letter sent to or left at all known addresses of the debtor. The appointment letter should also state that:

(a) in the event of the time and place not being convenient, the debtor should propose some other time and lace reasonably convenient for the purpose;

(b) in the case of a statutory demand as suggested in para.11.2 above, reference is being made to this paragraph for the purpose of service of a statutory demand, the appointment letter should state that if the debtor fails to keep the appointment the creditor proposes to serve the demand by advertisement/ post/ insertion through a letter box as the case may be, and that, in the event of a bankruptcy petition being presented, the court will be asked to treat such service as service of the demand on the debtor;

(c) (in the case of a petition) if the debtor fails to keep the appointment, an application will be made to the court for an order that service be effected either by advertisement or in such other manner as the court may think fit

(3) When attending any appointment made by letter, inquiry should be made as to whether the debtor is still resident at the address or still frequents the address, and/or other enquiries should be made to ascertain receipt of all letters left for them. If the debtor is away, inquiry should also be made as to when they are returning and whether the letters are being forwarded to an address within the jurisdiction (England and Wales) or elsewhere.

(4) If the debtor is represented by a solicitor, an attempt should be made to arrange an appointment for personal service through such solicitor. The Insolvency Rules permit a solicitor to accept service of a statutory demand on behalf of their client but not the service of a bankruptcy petition."

For completeness, on the facts, the Deputy ICC Judge, after going through the evidence on point (at paragraphs 12 to 13), concluded that she did not accept that service of the Emmott SD was effective on 31.3.21 (paragraph 14).

In Makki v Bank of Beirut SAL [2022] EWHC 733 (Ch); [2022] BPIR 1087 (‘Makki’), Deputy ICC Judge Greenwood said, at paragraphs 9 to 11 (reference to the 'Rules' are to the 'Insolvency Rules 2016'):

'Rule 10.2 of the Rules requires a creditor seeking to serve a statutory demand to "do all that is reasonable to bring the statutory demand to the debtor's attention and, if practicable in the particular circumstances, [to] serve the demand personally." The requirement to do "all that is reasonable" was described as a "high test" by Nourse LJ in Regional Collection Services v Heald [2000] BPIR 661 (CA), 664-5. Given its consequences for the debtor, that observation is unsurprising.

Paragraph 11.2 of the Insolvency Practice Direction [2020] BCC 698 provides that if personal service is not practicable in the particular circumstances, the steps the creditor must take in order to comply with Rule 10.2 might include those set out at paragraph 12.7 of the Practice Direction which would justify the court making an order for service of a bankruptcy petition other than by personal service, and provides that such steps may also include any other form of physical or electronic communication which will bring the demand to the debtor's attention. Paragraph 12.7.1 of the Practice Direction sets out various steps that will suffice in most cases. Having said that... the issue is one to be decided on a "case by case" basis.

Rule 10.3(5) of the Rules provides that if the demand has been served other than personally and there is no acknowledgement of service, the certificate of service required by Rule 10.3(1) must be authenticated by a person or persons having direct personal knowledge of the means adopted for serving the demand and must contain the following information: (a) the steps taken to serve the demand, and (b) the date by which to the best of the knowledge, information and belief of that person, the demand will have come to the debtor's attention. Where paragraph (5) of Rule 10.3 applies, the demand is deemed to have been served on the debtor on the date referred to in paragraph 5(b), unless the court determines otherwise.'

An further issue in Makki was as to the meaning of 'come to a debtor's attention' for the purposes of Insolvency Rules 2016, r.10.3(5)(b), and therefore r.10.3(6), where a statutory demand is not served personally on the debtor. On the facts, the issue centred around the importance of an email having been sent and seemingly received into an email address inbox. The Deputy ICC Judge:

(1) found that '...although an email was sent to [Mr Makki] on [14.6.21] and successfully received into [Mr Makki's] account, [Mr Makki] did not see or read or at least consciously appreciate its content, and did not in fact do so until...' (paragraph 25(b) a date much later.

(2) said that that finding (amongst others) raised '...the question of whether the Demand "came to Mr Makki's attention" on [14.6.21], if it was received but unread as at that date. [Counsel for the Bank] submitted (albeit without reference to authority) that the failure of Mr Makki and his solicitor to read [14.6.21 emails] was "immaterial". Against that, [counsel for the Mr Makki] simply submitted that the Demand "did not come to Mr Makki's attention until [21.6.21]" (paragraph 26).

(3) concluded 'It would seem to me that for a demand to " come to a debtor's attention " for the purposes of Rule 10.3(5)(b) and therefore Rule 10.3(6), not having been served on him personally, it must in fact have come to his attention as a statutory demand for payment, on the day in question. If for some reason (however unusual) it does not, then the court is entitled to "determine otherwise" under Rule 10.3(6).' [bold added] (paragraph 27)

For completeness, on the facts in Makki, the Court held that Makki SD did not come to the attention of Mr Makki until 21.7.21.

As to the computation of time:

(1) 2016 Rules, Schedule 5 is entitled 'Calculation of time periods', and contains 4 paragraphs. Those 4 paragraphs read:

'1. The rules in CPR 2.8 with the exception of paragraph (4) apply for the calculation of periods expressed in days in the Act and these Rules.

2. (1) This paragraph applies for the calculation of periods expressed in months.

(2) The beginning and the end of a period expressed in months is to be determined as follows-

(a) if the beginning of the period is specified-

(i) the month in which the period ends is the specified number of months after the month in which it begins, and

(ii) the date in the month on which the period ends is

(aa) the day before the date corresponding to the date in the month on which it begins, or

(bb) if there is no such date in the month in which it ends, the last day of that month;

(b) if the end of the period is specified-

(i) the month in which the period begins is the specified number of months before the month in which it ends, and

(ii) the date in the month on which the period begins is(aa) the day after the date corresponding to the date in the month on which it ends, or

(bb) if there is no such date in the month in which it begins, the last day of that month.

3. The provisions of CPR rule 3.1(2)(a) (the court’s general powers of management) apply so as to enable the court to extend or shorten the time for compliance with anything required or authorised to be done by these Rules.

4. Paragraph 3 is subject to any time limits expressly stated in the Act and to any specific powers in the Act or these Rules to extend or shorten the time for compliance.'

See caselaw: (1) Re Legal and Equitable Securities plc [2011] BCC 354; (2) Re Lehman Bros International (Europe) [2014] EWHC 1687 (Ch); [2014] BPIR 1259; and (3) Re Calibre Solicitors Ltd [2014] All ER (D) 187, all in relation to the 1986 Rules but still relevant.

(2) CPR r.2.8 is entitled 'Time' and reads:

'(1) This rule shows how to calculate any period of time for doing any act which is specified-

(a) by these Rules;

(b) by a practice direction; or

(c) by a judgment or order of the court.

(2) A period of time expressed as a number of days shall be computed as clear days.

(3) In this rule “clear days” means that in computing the number of days-

(a) the day on which the period begins; and

(b) if the end of the period is defined by reference to an event, the day on which that event occurs, are not included.'

CPR r.2.8 then gives 3 worked examples:

'Examples-

(i) Notice of an application must be served at least 3 days before the hearing.

An application is to be heard on Friday 20 October.

The last date for service is Monday 16 October.

(ii) The court is to fix a date for a hearing.

The hearing must be at least 28 days after the date of notice.

If the court gives notice of the date of the hearing on 1 October, the earliest date for the hearing is 30 October.

(iii) Particulars of claim must be served within 14 days of service of the claim form.

The claim form is served on 2 October.

The last day for service of the particulars of claim is 16 October.'

CPR r.2.8 continues, with r.2.8(4):

'(4) Where the specified period-

(a) is 5 days or less; and

(b) includes-

(i) a Saturday or Sunday; or

(ii) a Bank Holiday, Christmas Day or Good Friday, that day does not count.

CPR r.2.8(4) is accompanied by a worked example: 

Example -

Notice of an application must be served at least 3 days before the hearing. An application is to be heard on Monday 20 October.

The last date for service is Tuesday 14 October.

Lastly, CPR r.2.8(5) provides:

'(5) Subject to the provisions of Practice Direction 5C, when the period specified-

(a) by these Rules or a practice direction; or

(b) by any judgment or court order,

for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open.'

[5] In Dissington Lending Co Ltd (also known as Rankin v Dissington Lending Co Ltd) [2021] EWHC 172, Deputy ICC Judge Kyriakides said, at paragraph 9:

'...section 376 gives the court an unfettered discretion to extend the time for applying to set aside a statutory demand, either before or after the prescribed time limit for making the application has expired'.

[6] In Dissington Lending Co Ltd (also known as Rankin v Dissington Lending Co Ltd) [2021] EWHC 172, Deputy ICC Judge Kyriakides said, at paragraphs 11 and 12:

'Although no authority relating to IA section 376 in the context of applications to extend time for making a set aside application was cited to me, there are two authorities, which assist in the approach that the court should take. The first is Bonney and others v Mirpuri [2013] BPIR 412 where Registrar Jones (as he then was) stated at [20] as follows:

"This [i.e. the discretion under IA section 376] is an unfettered discretion providing one of the methods by which the Bankruptcy Court retains control over insolvency proceedings. It involves a balancing act taking into account all the circumstances and reasons relevant to the particular application. The considerations identified within CPR 3.9 are potentially relevant".

The second authority is that of Maud v The Libyan Investment Authority [2015] EWHC 1625 (Ch) . In that case, Mr Maud had delayed in applying to set aside a statutory demand served on him by The Libyan Investment Authority by a period of five months. The judge at [25] approached the application to extend time in the following way:

"The parties agreed that the test I should apply is to consider first the prejudice to Mr Maud, if any, if the application were to be refused and then secondly evaluate the weight to be given to that prejudice having regard to his conduct and to any explanation given by him as to why he failed to make the application in time. Thirdly, I must take account of the prejudice to the LIA if Mr Maud is able to proceed."'

[7] Note, there is also the earlier case of Bonney v Mirpuri [2013] BPIR 412, wherein Registrar Jones stated, at paragraph 20:

'This [i.e. the discretion under IA section 376] is an unfettered discretion providing one of the methods by which the Bankruptcy Court retains control over insolvency proceedings. It involves a balancing act taking into account all the circumstances and reasons relevant to the particular application. The considerations identified within CPR 3.9 are potentially relevant'

[8] In Maud v Libyan Investment Authority [2015] EWHC 1625 (Ch); [2015] BPIR 858 ('Maud 1625'), Rose J worked through the balancing exercise, at paragraphs 26 to 30, in respect to Mr Maud's application to set aside the statutory demand served on him by LIA:

'26. As to the prejudice Mr Maud would suffer, I consider that it would be a considerable prejudice to him to have to deal with the further stages of bankruptcy proceedings if the demand is allowed to stand without challenge. I reject the LIA's submissions that he suffers no prejudice because his lack of funds means that he cannot be pushed into a position of having to make a possibly illegal payment. The prejudice he suffers is not just being pushed to pay, if he can, a sum which might put him in breach of the sanctions regime but rather the prejudice of facing a bankruptcy petition.

27. However, as to how much weight should be given to that prejudice, I accept the LIA's submission that the explanation given by Mr Maud in his witness statement is highly implausible. Mr Maud says that he only became aware of the conflict in Libya in May 2014 when he was on a trip to Abu Dhabi where he read of the storming of the interim Libyan Parliament in Benghazi. On returning, he carried out further research on the internet and it became apparent to him that both the UN and the EU had imposed sanctions upon Libya. During June and July 2014 he made enquiries of the Sanctions Team at HM Treasury but did not receive a substantive response from them.

28. I would have expected that a person with Mr Maud's complex business affairs who has regular dealings with the LIA to be aware of the imposition of sanctions. He knew, as from March 2010, that he owed the LIA a debt of over £17 million to which he has no defence. I would expect someone who owes such a large amount of money to keep a weather eye open for developments which might affect the enforceability of the debt or at least to have people around him to advise him on such matters. If that were the only point for consideration on the extension of time application, I would place little weight on the prejudice to him.

29. I do not see that there is much prejudice to the LIA in allowing the application to set aside to proceed. The assumption that they will, if the statutory demand is not challenged, proceed rapidly to the appointment of a trustee in bankruptcy may be over-optimistic. In any event, a trustee will need to have the issues raised by this application determined before making any payment to the LIA. [Counsel for the LIA] argues that prolonging the proceedings has delayed the appointment of the trustee and increased the risk of potentially voidable transactions being put beyond the reach of creditors. That is a relevant factor that I have taken into account.

30. The reason why I have concluded that I should extend time for the making of the application is that there is a public interest as well as the private interest of Mr Maud in ensuring that the sanctions regime is observed. The substantive issue of the applicability of the regime to Mr Maud's obligation under the guarantee will need to be resolved at some stage of these bankruptcy proceedings. It cannot be allowed to go by default because that would risk opening a crack in the regime through which other parties who wish to collude with each other to manipulate the bankruptcy process in order to evade the regime could slip. Given that I have heard full argument on the substantive issue it is convenient to determine it now rather than simply repeat the day's hearing at a later stage.'

As stated in the main body of the article, Rose J granted the extension of time required.

Note Maud 1625 was successfully appealed to the Court of Appeal [2016] EWCA Civ 788 but on the conclusions on the main set aside application, not in relation to her decision to extend time for making that set aside application.

[9] See footnote 4a above

[10] On the facts on this factor, in Dissington Lending Co Ltd (also known as Rankin v Dissington Lending Co Ltd) [2021] EWHC 172, Deputy ICC Judge Kyriakides said, at paragraphs 16

'...I consider, at least, in relation to the first defence raised by the Applicant...that this has a real prospect of success.'

[11] On the facts on this factor, in Dissington Lending Co Ltd (also known as Rankin v Dissington Lending Co Ltd) [2021] EWHC 172, Deputy ICC Judge Kyriakides said, at paragraphs 17 to 23:

'[Counsel for Mr Rankin] ...argued that good reason has been shown. He referred me to three documents in support of this argument. The first was the 20 February Email (which was still within the time-limit), which set out the Applicant's case as to why the Respondent's debt was disputed. At the end of the email the Applicant's solicitors invited the Respondent to confirm by 4pm on [27.2.20] that the Statutory Demand was withdrawn, alternatively to agree to extend the Applicant's deadline for making an application to set aside the Statutory Demand until [5.3.20].

18. In response, the Respondent's solicitors in an email dated [27.2.20] ( "the [27.2.20] Email" ), which stated:

"….We anticipate being in a position to respond substantively shortly but in the meantime confirm that our client will not issue a bankruptcy petition against your client without giving you at least 7 days' notice".

19. This email was acknowledged by the Applicant's solicitors' email on [27.2.20] in which they stated:

"…..I look forward to receiving your client's substantive response in due course. If possible, it would be helpful if the response could offer your client's view as to the appropriate forum for resolving the crossclaims/counterclaims."

20. By [9.3.20] the Applicant's solicitors had not heard anything from the Respondent's solicitors. They therefore wrote to the Respondent's solicitors stating that the Respondent had had two and a half weeks to decide whether, having regard to the Applicant's defence and/or crossclaim, it was appropriate to pursue the insolvency route and that because the threat of a bankruptcy petition could not be left hanging over the Applicant's head, he would be issuing an application to set aside the Statutory Demand unless the Statutory Demand was withdrawn by 4.30pm that day.

21. On [10.3.20] the Respondent's solicitors notified the Applicant's solicitors that the Respondent's position was that there was no valid dispute. They then added the following:

"You have indicated that you will be issuing an application to set aside the statutory demand. This is disappointing in circumstances where we had undertaken not to present a petition without providing 7 days' notice……please treat this email as 7 days' notice that our client will present a bankruptcy petition (unless of course an application to set aside has in fact been made beforehand)".

22. The Applicant argued that the effect of the [27.2.20] Email, as confirmed, in effect, by the email dated [10.3.20], was that the Respondent consented to extend time until the expiration of the 7-day notice period, if notice was given. This was denied by [counsel for the Respondent], who asserted that for any time extension to be agreed, there had to be express consent to extending the time for filing the application to set aside. He said that that had not happened and that all the Respondent had done had been to agree that it would not present a petition save on 7 days' notice.

23. I do not accept the Respondent's argument. In my judgment it is implicit from the [27.2.20] Email that the Respondent was agreeing to an extension of time for filing an application to set aside the Statutory Demand until the expiry of the 7-day notice period, if notice were to be given. The Respondent was clearly agreeing to forego its rights to present a petition on the expiry of the 38-day period. Alternatively, by its email the Respondent encouraged the Applicant to believe that it was not necessary for him to file an application to set aside the Statutory Demand unless and until he received notice that a petition would be presented. The purpose of the 7-day notice period could only have been to give the Applicant the opportunity to prepare and file an application if notice was given. That this was the agreement, understanding or representation is reflected in the subsequent email of [10.3.20], which shows that the purpose of the 7-day undertaking was to ensure that no application to set aside the Statutory Demand was filed prior to notice of an intention to present a petition was given.'

[12] In conclusion on the facts in Dissington Lending Co Ltd (also known as Rankin v Dissington Lending Co Ltd) [2021] EWHC 172, Deputy ICC Judge Kyriakides said, at paragraph 25:

'Balancing the above factors, in my judgment, permission should be granted to extend time for filing the application to set aside the Statutory Demand to [16.3.20].

Interestingly, the Deputy ICC Judge also added this (for if she was wrong about this not being a relief from sanctions application), at paragraph 25:

'I would add that had this been a relief from sanctions case, I would have still reached the same conclusion for the reasons set out above and on the further ground that the delay is neither serious nor significant in that the late filing: (i) did not interfere with any proceedings as no proceedings had been commenced; (ii) has not otherwise interfered with the administration of justice; and (iii) did not interfere with the Respondent's right to present a petition as the Respondent was content to give the Applicant the opportunity to file an application within 7 days of being given notice of its intention to present a petition.'

[13] In Makki v Bank of Beirut SAL [2022] EWHC 733 (Ch); [2022] BPIR 1087 ('Makki'), Deputy ICC Judge Greenwood set out his reasoning for why, had it been necessary, he would have held that the grounds for granting an extension of time to apply to set aside the statutory demand, were overwhelming. His obiter analysis provides an illustration of how such an extension of time application might be approached. He reasoned, at paragraph 28 of Makki, as follows:

'a. Even on the Bank's case, the required extension is very short, it being said that the 18-day period ended on Friday [2.7.21], and the Application having been made on Thursday [8.7.21]. Having received [Mr Makkis' then solicitors'] letter of [30.6.21] referring only to the communications of [21.6.21], acknowledging service and giving notice that Mr Makki intended to apply to set aside the Demand, it was not until Monday [5.7.21] that [the Bank's solicitors] replied, saying that the period in which to do so had expired on the Friday of the preceding week. Even then, it was said that no petition would be presented until after [8.7.21], assuming Mr Makki's failure to pay in the meantime. Having explicitly given Mr Makki until [8.7.21] in which to pay before presentation of a petition, the Bank now complains that in that time - having previously stated his intention to do so - he instead applied to set aside the Demand.

b. In the event, the Application was made only 3 days later (3 days after the Bank's argument regarding date of service had been brought to Mr Makki's attention) and before any attempt at presentation of a petition.

c. As set out above, [the Bank's solicitors'] emails of [21.6.21] stated that if payment were not made "within 21 days", the Bank would commence bankruptcy proceedings. The period of 21 days from [12.6.21] expired on [12.7.21]. Moreover, that letter made no specific reference to previous attempts to serve the [14.6.21] letter, and did not say that the 21-day period for payment had started to run on [14.6.21] (or any earlier or other date). It did not, in terms, draw to Mr Makki's attention the Bank's position that the Demand had been served on any earlier date. As I have said, it is and was from their correspondence at the time, perfectly plain that [Mr Makki's then solicitors] took the date of service to be [12.6.21]. I have already described the circumstances in which they and Mr Makki came to hold that view, which [the Bank's solicitors] made no attempt to contradict until [5.7.21], by which time it was said to be too late. Mr Makki's failure to apply within a period beginning on [14.6.21] was not deliberate. At worst, it was careless.

d. Moreover...the merits of the Application favour Mr Makki. If I were to refuse to extend time, the Bank would face the same argument on the hearing of its petition, which would therefore stand to be dismissed.

e. In the circumstances, whilst there is or appears to be little prejudice to the Bank in extending time (none that was specifically suggested at any rate) there would be significant prejudice to Mr Makki in refusing to do so.'

[14] See footnote 4a above

[15] In Makki v Bank of Beirut SAL [2022] EWHC 733 (Ch); [2022] BPIR 1087, Deputy ICC Judge Greenwood said, at paragraph 29:

'In respect of extension however, [counsel for the respondent bank] ... rightly pointed out that the Application itself did not seek an extension, and neither has a discrete application been issued subsequently...'

[16] It maybe that the Court is only willing to accept such an undertaking from a solicitor, in his capacity as an officer of the court. There is a recent case on the acceptance of undertaking, namely, McLinden v Lu [2022] EWHC 2807 (Ch) ('McLinden 2807'), but that case involved a different scenario (accepting a solicitor's undertaking to stamp of document, such that it would used as evidence in court in accordance with the Stamp Act 1891). Emphasising that this may not apply to undertakings to issue applications to extend time for statutory demand set aside applications, it is noted that in McLinden 2807, the court considered who it would accept undertakings from. The Court stated that it would:

(1) not accept undertakings from a lay party: 'The practice, as explained [in re Coolgardie Goldfields [1900] 1 Ch 475, at page 477], is that the court will not accept the undertaking of the parties...' (paragraph 78);

(2) accept undertakings from a solicitor in his capacity as an officer of the court (rather than as a representative of a party): '...the undertaking should come from a solicitor, in his, or her, capacity as an officer of the court, rather than as a representative of a party to the proceedings' (paragraph 77)

[17] In Makki v Bank of Beirut SAL [2022] EWHC 733 (Ch); [2022] BPIR 1087, Deputy ICC Judge Greenwood said, at paragraph 31:

'...I do not accept that such an application cannot be made orally.'

[18] In Makki v Bank of Beirut SAL [2022] EWHC 733 (Ch); [2022] BPIR 1087, Deputy ICC Judge Greenwood said, at paragraphs 32 and 33:

'In the circumstances, I do not accept that it was not open to Mr Makki to seek an extension of time. If and to the extent necessary, as I have said, I accede to that application. For the sake of completeness, I should add that [counsel for Mr Makki] also submitted that even if the Application were out of time, and not properly before the Court, the Demand should be set aside because it is incapable of founding a petition. In support, he cited the decision of Sir Donald Nicholls VC in In re a Debtor [1995] Ch 66, at 71B- D, where he said:

"In the present case … it is apparent that a bankruptcy petition cannot properly be presented on the basis of the existing statutory demand. It cannot properly be presented, because the only debt the debtor appears unable to pay is a debt which is less than the bankruptcy level. In those circumstances it would not be sensible or just to leave the statutory demand extant. The only purpose in doing so would be for this demand to form the foundation for a bankruptcy petition. Here such a petition would be bound to fail. That being so, the very presentation of a petition would be oppressive and an abuse of process. It could be struck out summarily. Accordingly, at the earlier stage of the statutory demand the court should intervene. When able to foresee the inevitable the court will always intervene summarily to anticipate it. The court does not countenance parties proceeding to a blank wall. Hence in the case now under consideration the court ought not to permit the statutory demand to stand."

I was not persuaded by that broad submission, which if correct would seem to mean that a debtor need never apply under Rule 10.4. In the case cited, the debt sought by the demand was less than the prescribed limit. It was therefore a demand that could be dealt with summarily, as failing to meet the statutory requirements. The same cannot be said for the Bank's Demand which is for an admitted, liquidated debt of over £200,000, presently due. It cannot be set aside other than by reference to Mr Makki's Application, and his supporting evidence. In any event, it is not necessary to decide the case on that basis, and I do not do so.'

[19] To give some more details on this issue as it arose in Dissington Lending Co Ltd (also known as Rankin v Dissington Lending Co Ltd) [2021] EWHC 172.

Mr Rankin's Dissington SD set aside application was accompanied by only a 'holding' witness statement (as the judge described it), from Mr Rankin's solicitor Mr Olins. So, it was:

(1) filed on 27.2.20, 18 days late; and

(2) only a 'holding' statement.

In the statement, Mr Olins:

(1) stated that Mr Rankin would himself be making a witness statement setting out in detail the facts that Mr Rankin relied upon in support of this case that the debt was disputed (paragraph 3); and

(2) exhibited an email dated 20.2.20, sent to the Company's solicitors, from Mr Olins, but on Mr Rankin's instructions, setting out the reasons why the debt was disputed (paragraph 3).

On 26.3.20, so 27 days after 27.2.20 (so 45 days after the deadline), Mr Rankin filed his own witness statement (paragraph 4).

In addition then to the main Dissington SD set aside application, Deputy ICC Judge had to determine (amongst other things) '...whether the time for filing the Applicant's witness statement should be extended to [26.3.20]...' (paragraph 5.2)(note this was not, per se, about granting an extension to 27.2.20 to permit Mr Rankin to rely upon his solicitor's (late) witness statement).

Under the heading 'The Application to extend time to file and serve the witness statement of Allan Rankin dated [26.3.20]', the Deputy ICC Judge dealt with this issue, between paragraphs 26 to 47 (Mr Rankin is the debtor/Applicant; the Company is the creditor/Respondent):

'26. [2016 Rules] Rule 10.4(6) provides that the debtor's application must be accompanied by a copy of the statutory demand and supported by a witness statement containing: (a) the date on which the debtor became aware of the statutory demand; and (b) the grounds on which the debtor claims that it should be set aside; and (c) any evidence in support of the application.

27. The above rule is reiterated in [Insolvency PD] paragraph 11.4.1, which provides that the application and witness statement in support must be filed within 18 days, alternatively, within the time prescribed by [2016 Rules]10.1(10) (in this case, 35 days) of service of the statutory demand on the debtor.

28. In the present case, a witness statement was filed with the Application, based on the hearsay evidence of the Applicant. However, it was clear from both the witness statement itself and the correspondence that the evidence was not complete and that it was intended to file and serve a witness statement from the Applicant himself.

29. In the Application, the Applicant applied for an extension of time to [25.3.20] for the filing and service of a witness statement by him, although the witness statement was not, in fact, filed and served until [26.3.20]. To the extent that the Application needs to be amended, I grant permission for it to be amended to seek an extension of time to [26.3.20], instead of [25.3.20].

30. The normal procedure when an application to set aside a statutory demand is filed is, subject to the court summarily dismissing the application, for a 15 minute directions' hearing to be fixed. Because of the pandemic and the first lockdown, this did not happen in this case. Had such a hearing taken place, the court would have undoubtedly considered at that hearing whether time for filing the Applicant's witness statement should have been extended.

31. Instead, this case appears to have taken an unusual course...'

The Court then discussed whether an extension of time had already been granted, concluding that no extension of time had been granted and that the issue remained open.

The Deputy ICC Judge continued:

'35. It, therefore, falls for me to determine whether an extension of time for the filing of the Applicant's witness statement should be granted to [26.3.20].

36. The first issue for me to consider is whether, as claimed by the Respondent, the Applicant should have applied for relief from sanctions pursuant to CPR 3.9 . In my judgment no such application was required for the reasons set out in paragraphs 37 to 45 below.

37. As stated above, [1986 Act] section 376 expressly makes provision for the extension of time for the doing of anything limited by the [2016 Rules]. In this case, it is clear by the combination of [2016 Rules] 10.4(2) and 10.4(5) that any evidence to be filed in support of an application to set aside a statutory demand must be filed within 35 days. Accordingly, CPR 3.9, insofar as it requires any application to be made for relief from sanctions, does not apply.

38. If the above is wrong, and the CPR does apply, because of the breach of [Insolvency PD] paragraph 11.4.1, the issue that then arises is whether the time extension application should have been made under CPR r.3.2(1)(a) or CPR r.3.9 and how I should exercise my discretion in deciding whether or not to extend time. There are two authorities which assist in this respect.

39. The first is that of Altomart Ltd v Salford Estates (no. 2) Ltd [2015] 1 WLR 1825. Moore- Bick LJ answered this question at [10] in the following way:

"10. In my view it is clear from the language of rule 3.8 that it is concerned with a sanction imposed by the very rule, practice direction or order of which the applicant is in breach, hence the use of the word "imposed by the rule, practice direction or court order." In such cases the consequences of default are spelled out; a classic example is an "unless" order. Rule 3.9 does not repeat the words "by the rule, practice direction or court order", but Rule 3.8 provides the context of [sic] in which rule 3.9 has to be read and in my view it is also directed to sanctions in the sense of consequences imposed by the rule, practice direction or order of which the applicant is in breach. Most rules, practice directions and orders, however, do not provide specific sanctions for their breach, leaving it to the court to decide what, if any consequences should follow. In my view rule 3.9 does not, therefore, apply to such cases and an application for an extension of time is not one that falls within the scope of rule 3.9, either expressly or by analogy. Such applications are governed by rule 3.2(1)(a)".

40. The second is the case of Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch). In this case, the court considered the extent to which CPR r.3.9 might be applicable where there is a breach of a rule, order or practice direction does not expressly impose a sanction. The conclusions that it reached may be summarised as follows:

40.1. first, there are cases where, although the rule, order or practice direction does not expressly state a sanction, the court nevertheless by a process of interpretation construes the rule, order or practice direction as impliedly containing one. In such cases, the court must be satisfied that the intention of the rule-maker or judge was to impose a sanction that has not been expressed ([22] and [26]). If so satisfied, it appears that an application under CPR r. 3.9 is required;

40.2. secondly, there are cases where there is no intention to create a sanction, but the law for policy reasons treats the case as one analogous to an application for relief from sanctions. Examples are where an appellant does not file a notice of appeal in time or a party does not file and serve a witness statement in accordance with a court order. In such cases, the party will not be entitled to file the desired document unless the court extends time permitting him to do so ([22] and [35]). Although applications in such cases are made under CPR 3.2(1)(a), the discretion of the court will be exercised in the same way as an application under CPR r. 3.9;

40.3. finally, there are those cases where the rule, order or practice direction is expressed in mandatory terms such as "shall" or "must", but a failure to comply does not lead to the implication of a sanction, or the need to approach the failure by analogy to relief from sanction cases. At [26] H.H. Judge Matthews stated:

"I too respectfully agree with the view of Martin Spencer J that it would be wrong "to imply the need to apply for relief from sanctions in all cases where a rule or practice direction contains" the word 'must'. It is a question of construction and, as is well known, in questions of construction context is everything.".

41. [Counsel for the Company/Respondent] argued that CPR r. 3.9 did apply and that an application for relief from sanctions should have been made. Alternatively, he submitted that this case fell within the second category of cases referred to in paragraph 40.2 above and that I should, for policy reasons, treat it as one analogous to an application for relief from sanctions. [Counsel for Mr Rankin/Applicant], on the other hand, submitted that the failure by the Applicant to file all of his evidence with the Application falls within the third category of cases referred to in paragraph 40.3 above. For the reasons set out below, I agree with [Counsel for Mr Rankin/Applicant's] submissions.

42. First, it is clear that neither [2016 Rules] 10.4(5) and 10.1(10(a) nor [Insolvency PD] paragraph 11.4.1 expressly imposes a sanction in the event that a witness statement is not filed at the same time as the application; nor, in my judgment, is such a sanction to be implied as a matter of construction of these provisions.

43. Secondly, the provisions of [2016 Rules] 10.5 are relevant. These provide, inter alia, as follows:

43.1. "On receipt of an application to set aside a statutory demand, the court may, if satisfied that no sufficient cause is shown for it, dismiss it without giving notice of the application to the creditor" ([2016 Rules] 10.5(1);

43.2. "Unless the application is dismissed under paragraph (1), the court must fix a venue for it to be heard and must give at least five business days' notice" to the persons identified ([2016 Rules] 10.5(5(3));

43.3. "On the hearing of the application, the court must consider the evidence then available to it, and may either determine the application or adjourn it, giving such directions as it thinks appropriate". ([2016 Rules] 10.5(4)).

44. Therefore, if no or insufficient evidence is filed with an application to set aside a statutory demand, the court may, in such circumstances and in its discretion, if it considers that there are insufficient grounds for the application to proceed, dismiss the application at this point. However, if the application is not dismissed, the court must fix a hearing date when it is required to consider the evidence then available to it. This provision makes it clear, in my judgment, that if an applicant does not file all of his evidence at the same time as his application, provided that he has filed it by the time of the first hearing, the late filing of his evidence will not have any consequences in terms of a sanction (whether by implication or as a matter of policy) as the court is required to take that evidence into account in deciding how to proceed with the case. Of course, if an applicant does not file all of his evidence by the first hearing, the court then has a discretion whether or not to deal with the application at the hearing without the further evidence or to adjourn it and make directions. Such directions can then include an unless order, thereby imposing a sanction in the event that the order is not complied with.'

The Deputy ICC Judge then turned to the facts of the present case. It is now necessary to quote from 4 paragraphs earlier in the judgment, to aid understanding of how the Deputy ICC Judge set her decision in context. Paragraphs 31 to 34 read:

'31...On [18.3.20] ICC Judge Jones, responding to the Application as initially filed, stated, inter alia, as follows:

"Noting the reference in the evidence to the intention to file evidence by [25.3.20], if no further evidence is filed by 17.4.20] the application will be automatically dismissed. If filed before that date and a petition has not been presented, the application should be referred to an ICC Judge for further consideration".

32. The natural reading of the above comment is that time for filing a further witness statement would be extended by way of an unless order to [17.4.20] and that if one was filed by that date, the matter would then be referred to an ICC Judge to consider whether the Application should be permitted to proceed and, if permitted, then to give directions. However, no formal order was ever issued by the court.

33. On [28.4.20], the Respondent's solicitors sought confirmation that "the application has in fact been referred to an ICC Judge as referred to in your email" . No objection appears to have been raised by them, however, regarding the admissibility of the Applicant's witness statement dated [26.3.20]. On [29.4.20] ICC Judge Jones responded stating that the witness statement had "only referred to me today. There should be a hearing of the application where the matter can be argued. " He then gave directions for evidence in answer and in reply and for the Application to be listed.

34. Whilst it might be inferred from the above that the ICC Judge was satisfied that the witness statement of the Applicant showed that the Application should not be summarily dismissed and that there was sufficient evidence for the Application to proceed, there was no order from the court extending time for the filing and serving of the Applicant's witness statement. On having made further inquiries of ICC Judge Jones, he has confirmed that no order was made by him extending time and that this was something to be determined at the hearing of the main application.'

The Deputy ICC Judge said, from paragraph 45:

'45. In the present case, ICC Judge Jones decided that he would exercise his summary powers to dismiss the application unless a witness statement from the Applicant was filed by [27.4.20], at which time the matter would have to be referred back to an ICC Judge for the purposes of deciding whether to summarily dismiss the Application, because of a lack of merits or to fix a venue for the Application to be heard. When the matter came back before ICC Judge Jones on [29.4.20], he must have been satisfied that the evidence was sufficient to justify fixing a hearing and accordingly, gave directions for further evidence to be filed and served and also for the final hearing of the Application.

46. In light of the above, the matter for me now to decide is whether, in the exercise of my discretion, I should extend time for the filing of the Applicant's witness statement, whether under [2016 Act] section 376 or CPR 3.2(1)(a). In so doing, I adopt the approach set out in paragraphs 9 and 10 above.

47. In my judgment, an extension of time to [26.3.20] should be granted. In exercising my discretion, I take into account the overriding objective and the following matters:

47.1. having extended time for the filing of the Application, the time extension for filing the further evidence required is 10 days. Even if this were incorrect and the relevant date was the date that the Application should have been filed by, namely, [27.2.20], the time extension required would only be 27 days;

47.2. ICC Judge Jones clearly considered that the Applicant should have the opportunity of filing further evidence for consideration; otherwise, he could have dismissed the Application on a summary basis without further notice. He also must have considered that the effect of the further evidence filed was that a sufficient case on the merits had been presented to justify a hearing on the merits;

47.3. as shown by my judgment on the merits (see below), the evidence of the Applicant has satisfied me that the debt is disputed on substantial grounds;

47.4. there is no prejudice to the Respondent if time for filing the Applicant's further evidence is extended. The Respondent has had notice of the evidence for a period of nine months, has had an opportunity to respond to it and has served evidence in answer. Indeed, at the time of filing the Application, the Respondent had already been informed of the grounds of the Applicant's defence and seen a good part of the evidence that the Applicant wanted to rely upon as set out in the [20.2.20] Email, which was exhibited to the witness statement of Mr Olins dated [16.3.20];

47.5. on the other hand, the Applicant is likely to suffer prejudice if he is not allowed to rely on his evidence in that it might affect the outcome of his Application adversely with the result that he would then have to face a bankruptcy petition;

47.6. the reasons for the delay are set out in an email from the Applicant's solicitors dated [12.3.20]. In that email Mr Olins informed the Respondent's then solicitors that it was unlikely to be possible for the Applicant's evidence to be filed at the same time as the application, due to other professional commitments, the need to take instructions and the delay in doing that via electronic rather than face-to-face meetings and coronavirus delays. The email was written in the early days of the pandemic ([0.3.20]), and Mr Olins states, before lawyers had got used to remote working. Whilst I accept [Counsel for the Company/Respondent's] submission that professional commitments are not a reason not to comply with time requirements, I accept that additional difficulties are likely to have been caused by the first lockdown when everyone was on a new and different learning curve. Further, whilst I accept that the [20.2.20] Email does provide much of the detail of the Applicant's case, it does not set out all of the detail in the Applicant's witness statement and it seems to me that it would be normal practice to ensure that full instructions were taken before filing a witness statement. Perhaps more surprising, in my judgment, in light of parties' duties to co-operate with each other, is the fact that, despite the extension required being less than 28 days (if the application filing date is the relevant date), the Respondent opposed it and, indeed, continued to do so at the hearing despite a further period of about 9 months having passed, the evidence having been completed and the preparedness of the parties to argue the case on its merits;

47.7. had this matter proceeded in the usual way, I have no doubt that the court at the first hearing of the Application would, in the exercise of its case management powers, have permitted the admission of the Applicant's witness statement and then proceeded to make further directions.'