Matthews v BSN (SW) Ltd [2025]

On appeal in Matthews v BSN (SW) Ltd [2025] EWHC 1650 (Ch), HHJ Paul Matthews held that it was not a procedural irregularity for the Judge below to go on and hear the bankruptcy petition, after he had dismissed an application to set aside an earlier order. The question of procedural irregularity is one of substance not of form. The judicial act of deciding what to hear and when, is not hamstrung by the administrative act by the court staff of publishing a list of matters to be heard on a particular occasion (see paras.59-60).

The appellant also sought to argue that the the guarantee on which the petition debt was founded did not give rise to a liquidated debt because it was a ‘see to it’ type (i.e. an undertaking by the guarantor that the principal debtor will perform his own contract with the creditor) which creates a liability in damages, but not a liquidated debt (see McGuinness v Norwich and Peterborough Building Society [2011] EWCA Civ 1286, paras.7, 43, 50-51). The Court did not allow this fresh point to be taken on appeal, but in any event observed that the guarantee in this case was a conditional payment obligation (i.e. a promise by the guarantor to pay if the principal debtor fails to make payment), which does give rise to a liquidated debt (see paras.65-67).

Robert Machell represented the successful Respondents.

Full Judgment available here