Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 102
register of companies and dissolved. They had
subsequently been restored and then wound up and
thus section 1032 of the Companies Act 2006 applied.
Accordingly, the companies were deemed to have continued in existence and although they did not, in fact,
exist when limitation expired on 8 November 2011,
the law deemed they did exist at that time.
for specific legal advice and should not be relied upon
for this purpose.
This article represents the opinion of the author and
does not necessarily reflect the view of any other member of St Philips Chambers.
Author
Natalie Kearney
Natalie is a member of Chambers’ Business and
Property Group, specialising in insolvency, commercial litigation and company law disputes. Natalie regularly appears as sole counsel in both the County
Court and the High Court, handling interim applications and trials across the fast and multi tracks.
The claimants submitted:
l they could not have discovered the fraud any
earlier than they did because they did not have officers
capable of discovering the fraud until liquidators were
appointed; and
l section 1032 should be read so as to deem the companies only had a ‘bare’ existence during the period of
dissolution, with no officers in post who could have
discovered the fraud.
Natalie is consistently instructed by clients for both
advisory work and the settlement of proceedings
across all areas of commercial law and welcomes
involvement at an early stage of proceedings.
The Supreme Court dismissed the appeal finding
nothing in section 1032 to support the claimants’ interpretation. The question as to whether a company is
assumed to have had officers, and therefore whether
such officers could with reasonable diligence have discovered the fraud, is a question of fact based on the
balance of probabilities with reference to the available
evidence. Neither of the claimant companies had adduced evidence on the point and therefore, given the
burden was theirs, they had failed to discharge the
burden of proof and the claims were statute-barred.
She brings a grounded, client-focused approach to litigation, having worked at a solicitor’s firm before coming to the Bar.
Natalie is a member of Chambers’ Pupillage Committee, has written for well-established practitioner resources, and regularly delivers seminars.
https://st-philips.com/our_people/natalie-kearney/
Implications for practice
Whilst the decision in relation to section 213 is
perhaps unsurprising, it is a welcome confirmation of
the position when pursuing third parties that actively
assisted in fraudulent trading. It will be wise for parties involved in transactions with companies at risk of
insolvency to be advised of the potential liability for
fraudulent trading.
Mr Stephen Farnfield
EXPERT FINANCIAL WITNESS
Earnings, Pension Loss, Loss of Dependency,
Lost Years, Form of Award (PPO v LUMP SUM) and
Settlement Assessment Reports
The interpretation of section 213 is in line with the
creditor-friendly interpretation of section 423 in the
decision in El-Husseiny v Invest Bank PSC [2025]
UKSC 4 earlier this year, which confirmed that section 423 can be used where a debtor procures the
transfer of assets they do not personally own.
Expert Financial Witness Specialising in Personal Injury and Clinical Negligence Cases
where there is a loss of Earnings and Pension Loss. I also regularly provide pension loss
calculations for Employment cases.
Over the last 15 years I have provided more than 500 expert pension reports, with their
respective values ranging from £10,000 to over £1m.
Due to the complex nature of pensions and the current pensions legislation it is
often advisable for me to complete the Loss of Earnings Calculations within the same
report. This way I can ensure that there is a clear and accurate treatment of Tax, National
Insurance and Pension Contributions through the claim.
The decision in relation to section 32, and its interplay
with section 1032, is particularly interesting in that it
raises the question as to what evidence could be adduced to show that a company that was dissolved and
subsequently restored could not with reasonable diligence have discovered a fraud. At first blush it seems
likely to be a difficult evidential hurdle for a claimant
and certainly something to keep an eye on for future
developments.
When preparing Loss of Earnings Calculations, I will ensure that correct tax treatment of
employment benefits are taken account of such as: Death in Service, Private Medical
Insurance, Company Car etc.
Regularly I am asked to provide figures in relation to Loss of Dependency in fatal cases
as well as Lost Years calculations in cases where there has been a reduction in life
expectancy due to the injury/negligence.
My reports are detailed and CPR Compliant they are designed to be easy for the reader
to digest and understand. I pride myself on my evolving approach to dealing with issues
and the good relationship that I build with my instructing solicitors.
Where approval has not been sought/granted for a formal expert I work on the basis of
acting as an agent of the instructing firm. I can provide white labelled reports and calculations that then form the basis of the claim for loss of earnings and pension.
I am often asked to provide comment on the appropriate form of award for individuals
as they approach settlement. Is a Lump sum only award or a reduced lump sum and annual income the best route? At this stage I will discuss with the key stakeholders and
provide a detailed analysis of not only the mathematics but also of the softer factors that
need to be taken account of such as life expectancy, individuals preferences and the
wider economic environment.
Anyone interested in hearing more about the
implications of this case, or the section 423 developments, is welcome to attend the St Philips Chambers
Insolvency Conference on 18 June 2025. Register
here
Telephone: 07828 554215
Email: steve@paladingroupltd.com
Website: www.paladingroupltd.com
Whilst every effort has been taken to ensure that the
law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute
EXPERT WITNESS JOURNAL
100
OCTOBER/NOVEMBER 2025
