The High Court allowed a personal insolvency practitioner to amend a notice of motion seeking approval of a proposed personal insolvency arrangement, despite opposition from creditor Tanager DAC. The ruling addressed who was identified as applicant; it did not determine the underlying application on its merits.
The original motion, filed in February 2017 under section 115A of the Personal Insolvency Act, named debtor Frank McNamara in its opening words. The practitioner, James Green, had signed it. After later High Court rulings clarified that only a personal insolvency practitioner could bring a section 115A application, Green sought to amend the notice so it expressly identified him as applicant on the debtor’s behalf.
Tanager opposed the change. It argued that the request would in substance substitute a new party, and that the court’s power to add a party could mean the application was treated as having started only when the amendment was ordered. That would put it outside the statutory 14-day filing period, which cannot be extended. Tanager also argued that the practitioner had not shown the naming of the debtor was a genuine mistake.
Justice Denis McDonald found that the motion, considered as a whole, showed Green had formulated and issued the application and supplied the material required of a practitioner. The debtor had given written instructions for the application. The judge accepted Green’s explanation that he had framed the opening words to reflect that lawyers would argue the case and that he was not legally qualified. The judgment also noted uncertainty among practitioners before the earlier rulings clarified who had to be named.
The court treated the naming of the debtor in the opening words as a defect that could be corrected, rather than the substitution of a new party. It held that amendment was permitted under Order 28, rules 1 and 12 of the Rules of the Superior Courts, and section 115A(14) of the 2012 Act. The judge found no alleged prejudice to Tanager in presenting its case. Since those provisions supported the amendment, he did not decide whether Order 15 or the court’s inherent jurisdiction could also provide a basis.
The order adds wording identifying Green as the practitioner, acting on behalf of McNamara, to the notice of motion. The judge said he would hear the parties on any consequential orders. He did not determine the separate, identical application in interlocking proceedings involving the debtor’s spouse, but said the identical circumstances meant a similar order should follow there.