Float Capital Limited, Re

This is a short judgment in which the court exercises its power pursuant to rule 12.59(1) of the Insolvency (England and Wales) Rules 2016 (the “Rules”) to review orders made on 24 July 2026 following a judgment handed down on the same date, [2026] EWHC 1891 (Ch) (the “Judgment”). The orders (a) fixed Mr Bouchier’s remuneration on a time-costs basis, and directed that his fee estimate of £362,986.50 for the period 23 August 2024 to 22 August 2029 stand as his fees estimate for the purposes of rule 18.30 of the Rules (“Bouchier Order”); and (b) increased and approved the amount of Mr Woodthorpe’s remuneration as joint liquidator by reference to his fee estimate of £1,272,872 for the period 23 August 2024 to 31 December 2028, and directed that that estimate stand as his fees estimate for the purposes of rule 18.30 ( “Woodthorpe Order”).

This review relates only to the Woodthorpe Order. The Bouchier Order is unaffected and stands: the court fixed the basis of Mr Bouchier’s remuneration under rule 18.23, so that any future request to exceed his estimate falls to the court under rule 18.30(2)(c). In the Judgment I held, pursuant to rules 18.24(b) and 18.28, that the amount of Mr Woodthorpe’s remuneration be increased and approved by reference to his fee estimate of £1,272,872. The jurisdictional reasoning is set out in paragraphs 28 to 32, where I favoured a purposive approach to rules 18.24 to 18.28 over a “narrow reading”. Section 112 of the Insolvency Act 1986 (the “Act”) was invoked in the alternative, and was taken shortly, without argument or authority on its relationship with the remuneration code in Part 18 of the Rules.

At paragraph 33 of the Judgment I stated:

“I should add that the point is not, so far as the researches of counsel and of the court have revealed, covered by authority.”

Given the compressed timetable for the hearing this was undoubtedly the case. However, since the Judgment was handed down the court has become aware of the decision of the Court of Appeal in Frost v The Good Box Co Labs Limited [2025] EWCA Civ 252, in which a “narrow reading” was preferred. The analysis in GoodBox is as follows, at [40] to [41] and [44]:

“Ms Temple KC submitted that the judge interpreted Rules 18.24 and 18.28 too narrowly. She submitted they are in ‘extremely broad terms’, and that the reference in both Rules to increasing the ‘rate or amount’ of remuneration was not intended to be limited to the matters referred to in 18.16. The judge should, she submitted, have concluded that the option of increasing ‘the amount’ was intended to cover both the case where remuneration had been fixed as a set amount, and the case where it had been fixed on a time-cost basis. On that basis, she submitted that ‘the increase sought by the administrators was clearly an increase in the “amount” of their remuneration, in that they sought an increase in the sums paid to them for work done.’

I disagree. The phrases ‘the rate or amount of remuneration fixed’ and … ‘the basis fixed’, which appear in 18.24, clearly refer back to Rule 18.16. Three options are given: (1) increasing the ‘amount’, which links directly to the remuneration having been fixed by reference to a set amount under Rule 18.16(c); (2) increasing the ‘rate’, which links directly to the remuneration having been fixed by reference to a percentage of the assets under Rule 18.16(a); and (3) changing the basis, which applies to each of the three cases set out in Rule 18.16(a)-(c), including the remuneration having been fixed on the time-cost basis. …

Much of Ms Temple’s argument was based on the premise that interpreting Rule 18.24 in the way the judge did here would leave a gap. That is, however, proved wrong by the existence of Rule 18.30. There is simply a different process for enabling administrators to receive more remuneration than they originally considered would be necessary where it was fixed on the time-cost basis, than where it was fixed by reference to a set amount or a percentage of assets.”

Although Good Box concerned administrators, the construction is of rule 18.24 itself, which governs every application under rule 18.28 whatever the office held. It applies equally to Mr Woodthorpe’s application.

On 31 July 2026 I wrote to the Applicants inviting submissions, signalling that Good Box directly affects the construction of the relevant Rules and that I intended to review the Woodthorpe Order. Written submissions were received promptly on 3 August 2026.

Rule 12.59(1) provides that every court having jurisdiction for the purposes of Parts A1 to 7 of the Act and the corresponding Parts of the Rules “may review, rescind or vary any order made by it in the exercise of that jurisdiction”. The power is exercised with caution, on the principles in Fitch v Official Receiver [1996] 1 WLR 242 and Papanicola v Humphreys [2005] EWHC 335 (Ch): the circumstances must be exceptional, ordinarily involving a material change of circumstances or material not before the court when the order was made, and the power is not a substitute for appeal. Those principles are satisfied. Binding authority directly on point was cited by no one; it establishes that the jurisdictional foundation of the Woodthorpe Order does not exist; the defect was identified by the court itself within days; and it is more proportionate for the court which made the order to correct it, on notice providing an opportunity for the Applicants to respond, than to leave standing an order which could not survive an appeal.

There is no doubt that the Woodthorpe Order cannot stand in light of Good Box. As in Good Box, the issue is finding the right procedural route to allow Mr Woodthorpe to increase the amount he can draw pursuant to the basis that was fixed in the administration. The right procedural route in Good Box was to seek approval from the plan administrators, pursuant to an adjudication procedure in the plan. That procedure is not open to Mr Woodthorpe.

One consequence of the Good Box ruling is that an office-holder must seek approval to exceed the fees estimate from the body that fixed the basis. The creditors fixed the basis of Mr Woodthorpe’s remuneration, so the request falls to be made to the creditors: rule 18.30(2)(b). The court has no power under the Rules because the court did not fix the basis, the court route existing only under rule 18.30(2)(c).

As I explained in the Judgment, this poses a particular problem for Mr Woodthorpe. The major creditor, holding some 98 per cent of the unsecured debt, cannot appropriately vote: it acts by joint administrators of whom Mr Bouchier is one, and its participation would offend the principle that remuneration should not be approved by a party whose relationship with the office-holder gives rise to a conflict. The remaining creditors hold only some 2 per cent of the unsecured debt and are said to be disinterested.

The procedural route advanced by Mr Passfield is the general power provided by section 112 of the Act. In his written submissions dated 31 July 2026 he submits:

“the Company’s other creditors have not participated in any decision procedure in either the administration or the subsequent liquidation, nor have they responded to the Application. In those circumstances, there is a real prospect that such a decision procedure would fail to produce any determination of the issue, in which case it would be necessary for the Liquidators to refer the matter back to the court to exercise its supervisory jurisdiction pursuant to s.112 IA.”

In the Judgment I proceeded on the basis that section 112 provided an alternative jurisdictional foundation for the relief sought. The point was not explored in any detail and no authority was cited addressing the relationship between section 112 and the remuneration code in Part 18 of the Rules. Good Box casts the issue in a different light. In those circumstances, and exercising the power conferred by rule 12.59(1), I consider it legitimate to revisit the question notwithstanding the absence of adversarial argument.

The question is whether section 112 can be used to achieve, by another route, the outcome which the narrow construction forecloses, or whether that would undermine the structure of Part 18 of the Rules. It is a genuinely jurisdictional question, and it meshes with the observation of Zacaroli LJ in Good Box at [62]:

“The problem is that the Rules do not make provision for the Court approving an increase in remuneration (above an earlier payment on account, and to no more than the amount of the fees estimate), where it was fixed on the time-cost basis.”

Mr Passfield informs me that a Deputy ICC Judge has found a route for the court to intervene through the gateway of section 112. I have not had the advantage of seeing the judgment.

Section 112 of the Act provides (where relevant):

“(1)

The liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding up of a company, or to exercise, as respects the enforcing of calls or any other matter, all or any of the powers which the court might exercise if the company were being wound up by the court.

(2)

The court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit, or may make such other order on the application as it thinks just.”

Section 112(1) has two limbs. The first limb is relied on as providing jurisdiction namely that the “liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding up of a company”. It goes without saying that the provision is embedded in primary legislation and is expressed in very wide terms. Nevertheless the provision is traditionally treated as supervisory and facilitative, not as a warrant to disregard a detailed statutory regime. A clear and obvious difficulty arises if one says that section 112 can simply be invoked whenever rule 18.30 is inconvenient. If that were correct, the construction exercise undertaken in Good Box would have little practical significance. Inconvenience is not a trigger for the operation of section 112. On the other hand, it is not hard to imagine a qualifying decision procedure sought pursuant to rule 18.30(2)(b) at which no creditor attends or votes, so that no decision is made. Good Box establishes that the Rules contain no gap: rule 18.30 provides the process. But the Rules presuppose a decision-maker capable of deciding. Where that presupposition fails in fact, a different question arises: does the incapacity of the rule 18.30 machinery to produce an effective determination permit the use of section 112?

In my judgment, where the rule 18.30 process is incapable of producing an effective determination, section 112 permits the court, on the application of the thwarted office-holder, to determine the remuneration question. The jurisdiction operates on the remuneration procedure within the Rules, not against it, and it is to be patrolled to ensure that it is not abused. Section 112 must not be used to bypass the rule 18.30 allocation while that allocation remains capable of operating. The court does not and cannot substitute itself as a creditor; it resolves a question arising in the winding up which the prescribed machinery cannot answer.

Is the rule 18.30 machinery capable of operating here? I find that it is not, for the following reasons. First, the major creditor cannot appropriately vote, for the reasons given at paragraph 10 above. Secondly, the remaining creditors, holding some 2 per cent by value, have demonstrated complete passivity: they did not respond to the revised fees estimate circulated on 18 August 2025; they did not respond to service of the application on 30 June 2026; and they did not attend or seek to be represented at the hearing on 23 July 2026.

Thirdly, section 246ZF(2) of the Act provides that:

“[i]f the rules provide for a company’s creditors or contributories to make a decision about the remuneration of any person, they must provide that the decision is to be made by a qualifying decision procedure”.

The deemed consent procedure, under which silence would result in approval, is therefore not available. A qualifying decision procedure requires affirmative votes, and there is no realistic prospect of any vote being cast, as Mr Passfield submits.

Fourthly, the cost of convening such a procedure would fall on the estate, to the detriment of the creditors, and ultimately of the trust beneficiaries who stand behind the major creditor.

In conclusion the emergence of binding authority not before the court when the order was made constitutes exceptional circumstances within rule 12.59(1), and I accordingly review and discharge the Woodthorpe Order.

In my judgment the court may determine the remuneration question using the supervisory powers provided by section 112 of the Act in place of the machinery that cannot operate. The question whether, and to what extent, Mr Woodthorpe may draw remuneration in respect of the liquidation notwithstanding rule 18.30(1) is a question arising in the winding up within the first limb of section 112(1). The findings I have made establish that the body to which rule 18.30(2)(b) allocates that question is presently incapable of answering it, and section 112 operates upon the remuneration procedure in the Rules and not against it: the court does not substitute itself as a creditor, but resolves a question which the prescribed machinery cannot resolve.

I am satisfied for the purposes of section 112(2) of the Act that the determination of the question before the court is just and beneficial to the liquidation. The work has been done. The alternative is that a properly appointed office-holder goes unremunerated or that the estate bears the cost of a procedure incapable of producing a decision.

I emphasise that section 112 is not to be used to bypass rule 18.30(2) while that allocation remains capable of operating; it is the demonstrated incapacity of the machinery in this case, and not any inconvenience in resorting to it, which engages the jurisdiction.

I invite Mr Passfield to address me on the form of order