Frances Coulson
- Partner
- Insolvency & Restructuring
DG Resources Ltd v Commissioner for His Majesty
In late 2024 Companies House gave notice to DG Resources Ltd under reg 6 Registered Office Address (Rectification of Register) Regulations 2024 informing the company of its intention to set up a default address unless, within 14 days, the company itself changed its registered office address or objected to the proposed change. The company failed to respond.
HMRC, presented a winding up petition in respect of £1,104,015 for unpaid tax. HMRC relied on service at the default address given on the Companies House website. The company applied to restrain advertisement of the petition and to strike it out. It sought that relief on a number of bases, one relating to the manner in which the petition had been served.
On 27 August 2025 Chief ICC Judge Briggs gave judgment (DG Resources Ltd v Revenue and Customs [2025] EWHC 2208 (Ch)). He held that the company was not able to dispute HMRC’s petition debt and could not rely on having what was said to be a genuine or substantial cross-claim advanced by the company; he held that the petition had been validly served on the company; he went on to consider the position if (contrary to his primary finding) the petition had not been properly served but, on the assumption of irregular or invalid service, declined to strike out the petition. Giving judgment in DG Resources Ltd v Commissioner for His Majesty’s Revenue and Customs [2025] EWHC 201 (Ch) (in spite of the 2025 date the judgment was handed down on 5 February 2026), Marcus Smith J allowed the company’s appeal, although there had been a major development since the judgment of the Chief ICC judge which meant that the case before the appeal judge was very different to that heard by the judge below.
It was common ground that on the date the petition was served, DG Resources’ registered office was the default address. However, it emerged, after the hearing before the Chief ICC judge, that HMRC’s process server had not served at the default address but had erroneously served at a local post office. Given what Marcus Smith J described as “the quite seismic change in circumstance” since the ICC judge’s judgment, he decided that he could not “not set aside the Judge’s exercise of his discretion…because HMRC, unintentionally, misled the Judge.” He noted Re Signland Limited as support for the proposition that, where there had been seriously irregular service, a petition should be set aside. Whilst rejecting the contention that an irregularly served petition was inevitably a nullity or prima facie invalid, he said,
“It seems to me that the most that can be said is that where there is an irregularity in the service of an originating process like a petition:
i) The court ought to attach particular weight to the irregularity, for the reasons articulated in Robertson v Google LLC.
ii) The court ought also to scrutinise the explanation for the irregularity and the conduct of the parties.
iii) But the court ought also to be sensitive to other relevant matters.”
He concluded:
“The fact is that through the negligence of its agents, HMRC has put forward to the court below a materially false case, and obtained judgment in its favour on the back of this. Such conduct, even when unintentional, must have consequences. In this case, it seems to me that this is a case where the Petition should be struck out or ‘removed from the file’, and HMRC be required to begin the process again. I reach this conclusion fully conscious that DG Resources has no substantive case against the Petition. That weighs heavily, but where there is so serious a breach of due process it seems to me that this factor is insufficient to save the Petition, which must be struck out or removed from the file.”
The main interest in the judgment lies, however, in Marcus Smith J’s analysis of the rules as to service of a winding up petition. “Given that service of petitions to wind-up is an everyday occurrence, the matters raised in the Grounds of Appeal are of general importance and need (in the wider public interest) to be put on a clear basis…” he said.
In paragraphs 8 ff of his judgment he set out the relevant law. He cited The Registered Office Address (Rectification of Register) Regulations 2024, which make provision for the address of a company’s registered office to be changed (either on application: reg 4; or because the registrar is under a duty: reg 7) to a default address, as had occurred in this case. He referred to s 1139 Companies Act 2006 which provides for service of a document on a company registered under the Act by leaving it at, or sending it by post to, the company’s registered office. “This, he said “represents the starting point and – in most cases – the end point as to where documents should be served on a company. However,” he went on to say, “this is a general rule and (as with any general rule) may be subject to displacement in special cases. The point made by DG Resources is that the service of a petition does represent a ‘special case’.”
He moved on to Sch 4 Insolvency Rules 2016 , para 1(1) of which provides that the Schedule sets out the requirements for service where a document is required to be served, which, he said, “strongly suggests an exclusive regime, i.e. unless service is done as provided for, it is not valid service.”
He then set out para 2, dealing specifically with the service of winding-up petitions. It provides that a winding-up petition must be served at a company’s registered office by handing it to a person at that address who acknowledges being a director, other officer or employee of the company, is, to the best of the knowledge and belief of the person serving the petition, a director, other officer or employee of the company, or acknowledges being authorised to accept service of documents on the company’s behalf (para 2(1)). If there is no-one of that kind at the registered office, the petition may be served by depositing it at or about the registered office in such a way that it is likely to come to the notice of a person attending the office (para 2(2)). If it is not practicable to serve a petition at a company’s registered office, or because it has none (and in certain other circumstances), the petition may be served by leaving it at the company’s last known principal place of business in England and Wales in such a way that it is likely to come to the attention of a person attending there; or on the secretary or a director, manager or principal officer of the company, wherever that person may be found (para 2(3) and 4). The judge said,
“I am in no doubt that para 2 constitutes a complete code for the service of a petition, and that service outside this code is not proper service. In particular, service by way of section 1139(1) alone is not sufficient service. I reach this conclusion for the following reasons:
i) The word ‘must’ in para 2(1), together with the general words in para 1(1), make clear that this is an exclusive code.
ii) The code in para 2 is hierarchical, in that the method of service laid down in para 2(1) is to be used (‘must’ again) unlessimpossible, in which case the para 2(2) method is permissible (‘…if there is no one of the kind mentioned in sub-paragraph (1) at the registered office…’). The tertiary method of service (in para 2(4)) may only be used if the conditions in para 2(3) are satisfied.
iii) The tertiary method of service is obviously a ‘catch all’, intended to deal with all cases of service, where service cannot be effected pursuant to paras 2(1) and 2(2).”
He described those provisions as the “Petition Service Code,” before making this point:
“It follows that to permit service of a petition pursuant to section 1139(1) when the provisions of the Petition Service Code have not thereby been complied with would be to circumvent a carefully thought out code, which is intended to apply exclusively in the case of petitions. Given what has been said in Robertson v Google LLP, it is clear that these rules are important as they are the means of engaging a court process (albeit a very specific form of process).”
Taking a view that differed from that of the Chief ICC Judge, he said,
“I do not consider that there can have been regular service of the Petition pursuant to section 1139(1) alone. Service of the Petition must be made pursuant to para 2. To the extent it matters, neither DG Resources nor HMRC sought to defend the Judgment on this basis.”
“[F]ully conscious that DG Resources has no substantive case against the Petition,” Marcus Smith J accepted the possibility of HMRC beginning the process again, so all is not necessarily lost for the petitioner in this case. The lesson is, however, the need carefully to scrutinise the way in which a process server effects service, especially where the circumstances of service are unusual.
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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