Frances Coulson
- Partner
- Insolvency & Restructuring
Elevate Estates Management Ltd v Fine Star Estates Ltd
ICC Judge Agnello KC’s judgment in Elevate Estates Management Ltd v Fine Star Estates Ltd [2026] EWHC 2728 (BP) looks at first sight to be just another routine application for an injunction to restrain advertisement of a winding up petition but is of interest for the approach the judge took to the applicant’s attempt to apply a second time, relying on what the judge described as “voluminous documentation and various witness statements in support of its case that the debt was disputed on substantial grounds and also based on the cross claim raised,” evidence that was not before Chief ICC Judge Briggs who heard the first application.
The winding up petition was presented by Fine Star against Elevate for non-payment of rent arrears amounting to over £800,000. Elevate applied for an injunction to restrain advertisement of the petition, dismissal of the petition and costs on the basis that the debt claimed in the petition was disputed on genuine and substantial grounds. Chief ICC Judge Briggs dismissed the application, giving detailed reasons for doing so. He also appears to have refused an invitation to adjourn for further evidence.
Elevate sought permission to appeal and applied for a stay. Adam Johnson J granted a limited stay but a continuation was refused by the Chancellor.
It was against that background that the second application for an injunction came before ICC Judge Agnello. It was supported by much more evidence than was before Chief ICC Judge Briggs, although the underlying theme was still that the petition debt was disputed on substantial grounds and the existence of cross claims. The respondent opposed the second application as an abuse of process, being a repeat of the earlier application which had been dismissed by Chief ICC Judge Briggs.
ICC Judge Agnello’s judgment deals at some length with abuse of process, res judicata and the principles set out in Henderson v Henderson (1843) 3 Hare 100 and Turner v Royal Bank of Scotland [2000] BPIR 683.
She referred to Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 as confirming the reason for the existence of the res judicata principle: “It supports the good administration of justice in the interests of the public and the parties preventing abusive and duplicative litigation.” Lord Sumption set out the following principles:
“(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”
Judge Agnello described the principle in Henderson v Henderson, considered by the House of Lords in Johnson v Gore Wood, as a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do.
The Turner principle applied in bankruptcy proceedings, but the judge expressed the view that it applied equally to corporate winding up proceedings.
Applying those principles to the case before her, she concluded that the second application was an abuse and should be dismissed:
“The private interest of Elevate in seeking to reopen the case must be weighed against the position of Fine Star whose interests include finality after the hearing before [Chief ICC Judge Briggs] and not to incur further costs. In my judgment, the public interest in this case does not allow Elevate to seek effectively a reopening of the hearing before the Judge on 13 July 2026. The courts should not allow parties to be able to utilise the court’s time and resources to hear cases when there is no justification on the evidence to allow that to occur.”
As to Judge Briggs’s refusal to adjourn, she commented,
“The exchange between the Judge and Counsel as to the evidence and the proposed adjournment sought in the event that the Judge was not satisfied on the evidence before him is also relevant. Elevate was hoping its evidence was sufficient to succeed but if not, it wanted to be able to run its case again on another date. The change of counsel before 13 July 2026 in my judgment, takes the matter no further. No adjournment was sought on that basis and what is sought now is a new hearing with the new evidence.”
Of particular interest is her analysis of what constitutes a cause of action for the purpose of the principles under consideration. She said,
“In my judgment, the cause of action is seeking a permanent and final injunction restraining the presentation of the winding up petition and a dismissal of the petition on the grounds that the debt is disputed (including the existence of a cross claim). This is because there is no basis upon which the petition could be presented or prosecuted if the debt is disputed. If the injunction restraining advertisement is granted, then in my judgment, this will lead to the dismissal of the petition on the grounds that the debt is disputed.
[…]
In my judgment, the proceedings before Chief ICC Judge Briggs was a final hearing of the original application. It determined that the debt was not disputed on substantial grounds and that the cross claim had not been established. That is a final and binding decision of those issues as well as the final determination of the original application. Contrary to Elevate’s submission, the issue of whether the debt was disputed on substantial grounds does not fall to be reconsidered at the petition hearing itself. The petition proceeds on the basis that there is an undisputed debt. The determination by the insolvency court is whether the debt is disputed on substantial grounds. That is the issue. If that is established, then the petition cannot proceed. Conversely, if the evidence does not establish that the debt is disputed on substantial grounds, then the petition will proceed. If a party is unhappy with the decision, it can seek to appeal.”
This article is for general information purposes only and does not constitute legal advice or a comprehensive statement of the law. Specific legal advice should always be sought in relation to individual circumstances.
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