The case of Currie & Anor v Fission Recruitment Services Ltd [2026] EWHC 1369 (Ch) (13 March 2026) is (we think) the only case to provide an example of what amounts to substantial injustice, such that a defect in the administration appointment process could not be remedied under r12.64 of the Insolvency Rules 2016.

The court did not have turn to r12.64 in this case, finding that the “appointment” of administrators was invalid (therefore there was nothing to remedy because the appointment was of no effect), but went on to consider whether r12.64 could have provided a remedy if the appointment was not void. Concluding that the defect was such that it would have caused substantial injustice and could not and should not be remedied by court order.

Background

The company had filed a notice of intention to appoint administrators, and an offer was anticipated to purchase the company’s business and some its assets.  The hoped for sale was also intended to be one of the purposes of the proposed administration.  A draft notice of appointment was circulated and prepared in anticipation, but further time was required before the appointment could go ahead. As such, the director was sent a second notice of intention to appointment administrators.  There was no question that there was a settled intention to appoint, so filing a second notice of intention was not in and of itself an issue.

However, when returning the “notice”, the director in fact returned a “hybrid” notice – the front page being the notice of appointment previously sent, with the back page being the second notice of intention.  Without noticing the error the solicitors ce-filed the notice in the form provided believing it to be the second notice of intention.

Following the court sealing the hybrid notice, it was sent to the “administrators” who noticed the error.  The solicitors who dealt with the filing then filed the correct version of the notice of intention, but this was rejected on account of the previous “hybrid” notice which appeared to appoint the administrators.

When filing the “hybrid” notice the solicitors did not file consents to act by the proposed administrators, as required by para 29(3) of Sch B1 of the Insolvency Act (presumably because they thought they were filing a notice of intention). 

The “appointed” administrators applied to court seeking a declaration that the appointment was invalid and that their appointment was void and of no effect but also asking the Court to accept the second notice of intention to appoint that had been filed but rejected – they were willing to act as administrators, but just not at the point at the hybrid notice was filed.

Invalidity, procedural defects and substantial injustice

  • Procedural defect – The “hybrid” notice of appointment was filed after the 10-business day moratorium created by filing the first NOI, and therefore out of time.    The judge said that such a defect is a procedural defect, that could, in appropriate circumstances, be remedied by order under r12.64. 
  • Invalid appointment – However the failure to file consents to act with the “hybrid” notice meant the appointment was invalid.  This was not a case where consents had been provided: the administrators had not confirmed either that they were willing to consent or (as part of consenting) that the purpose of the administration could be achieved.  This, the judge said, went “to the very core of the power to appoint”. Directors cannot, on any analysis, be deemed to have the power to appoint someone as an administrator of the company who has: (a) not agreed to take up that office, and (b) not confirmed that the purpose of administration is reasonably likely to be achieved.
  • Substantial injustice – The judge concluded, saying that even if he was wrong (on the validity point), the defect was not one that the court could, or should, make an order to remedy under r12.64 because there would be substantial injustice.  Firstly, to the administrators who had not consented to be in office, and secondly, to creditors who would be bound by a process where the administrators had not confirmed that the purpose could be achieved.

Ultimately the court confirmed that (a) the appointment was invalid, (b) that the “hybrid” notice should be removed from the court record, and (c) gave permission to file a second notice of intention disregarding the earlier hybrid notice.