The court’s finding in Vybra Solutions Ltd, Re [2026] EWHC 1125 (CH) (“Re Vybra”) highlights a conflict between the Insolvency Rules 2016 (the “Rules”) and the CPR. The decision that permission to serve outside the jurisdiction was not needed does not sit comfortably with the Rules. In the case, the Court also gave permission to serve a notice of intention to appoint administrators on a qualifying floating charge holder (“QFCH”) to an address that was different to the registered address.
Facts
The directors of Vybra Solutions Limited (the “Company”) resolved to appoint administrators at a board meeting on 30 March 2026. The Company had a QFCH, incorporated and registered in Sweden with a registered office at an address in Stockholm. The Company accurately identified the need to serve notice of intention to appoint administrators on the QFCH and the Company’s lawyers sought permission from the QFCH to do so by email.
The QFCH refused to accept service by email but said that it would accept service if it was posted to the QFCH’s business address in Stockholm. This address given as the business address was not the same as the registered office address.
On 31 March 2026, the applicant’s process server confirmed that he had personally served the notice to appoint administrators on the QFCH at the address given for service, the QFCH’s business address. The person at the office who received the notice identified themselves as authorised to accept service on the QFCH’s behalf. It was only after service had taken place in this way that the Company began to query whether it should have sought permission from the court to serve the notice outside the jurisdiction.
Law
The Company applied to the Court for relief because of uncertainty caused by an apparent gap in the Civil Procedure Rules 1998 (the “CPR”) and Rules where they relate to service of a notice of intention to appoint administrators outside the jurisdiction.
- Schedule 4 to the Rules makes it clear that a notice of intention to appoint administrators is to be served in accordance with Part 6 of the CPR and should be treated as ‘other documents’.
- CPR 6.32 and 6.33, which set out the circumstances in which the court’s permission is not required, appear to relate solely to claim forms and not to other documents.
- CPR 6.36 and paragraph 3.1 of Practice Direction 6B set out the grounds under which a claimant may seek permission to serve a claim form outside of the jurisdiction, but again this does not apply to other documents.
- CPR 6.37 deals with applications for permission to serve the claim form, and while there is reference in 6.37(5) to the court’s power to give directions about the method of service, it is qualified by permission to serve a claim form out of the jurisdiction already having been given by the court.
Analysis
The issue here, therefore, boils down to the facts that:
- a notice to appoint administrators is an ‘other document’, not a claim form;
- the exceptions to requiring permission to effect service set out in the CPR only apply to claim forms, which this notice is not; and
- a claimant’s ability to seek permission for ‘other documents’ under the CPR comes with the prerequisite that permission to serve a claim form outside the jurisdiction has already been given. As there was no claim in this instance, there was no reason for permission to serve a claim form outside of the jurisdiction to have been previously given by the court.
This was highlighted by the arguments raised by counsel that there seems to be no provision in the CPR for seeking permission to serve a document on a party outside the jurisdiction without first having service a claim form. Whereas this makes sense, counsel argued, in the context of litigation where ‘other documents’ are typically preceded by the service of a claim form, the logic does not carry through to the service of a notice to appoint administrators. The requirement in the Rules that a notice to appoint administrators should be treated as an ‘other document’ therefore creates an inherent tension.
In the case, the Judge Hodge KC determined that no permission of the court was required to serve notice on the QFCH because nothing in the rules makes it a precondition to acquire permission before effecting service of such a document outside of the jurisdiction. Judge Hodge KC commented that this did not seem unusual, given that the document in question is not one that is related to the initiation of court proceedings against the recipient.
What this means in practice
Judge Hodge KC’s rationale on the need for prior permission to serve outside of the jurisdiction being related to the initiation of court proceedings notwithstanding, does not sit squarely with the requirements in the insolvency legislation for a notice of intention to be served, and for service to be carried out in accordance with the CPR. Given that there is often limited time to deal with the appointment of administrators, there may not be time to apply to Court for permission to serve notice out of jurisdiction.
Practitioners should be mindful that under schedule 4 (1) (4) of the Rules they do not need permission if section 1139 (2) of the Companies Act 2006 (“CA”) applies. Section 1139 (2) stipulates the ways in which a document may be served on an overseas company whose particulars are registered under section 1046 CA, namely (a) by leaving or posting it to the registered address of any person resident in the UK who is authorised to accept service of documents on the company’s behalf, or (b) if there is no such person, or if any such person refuses service or service cannot for any other reason be effected, by leaving it at or sending by post to any place of business of the company in the United Kingdom.
However, there are some practical solutions. Is there a service agent appointed under the documents? If so, the issue is moot as the method for service will have been agreed. If not, could one be appointment. Similarly, if there is a cooperative QFCH who consents to a particular method of service, does lack of permission (if required) matter? Even though failing to get permission to serve outside of the jurisdiction may be a procedural defect, the QFCH consenting will make any argument that they have suffered substantial injustice difficult.
Practitioners will also need to consider the requirement for 5 clear business day to have passed since the QFCH has received notice before making the appointment. The date from which the calculation of the 5 days should begin can be less clear when effecting service outside of the jurisdiction so it may be sensible to allow for additional days where the circumstances permit it. If the appointment is being made by a QFCH, the same considerations ought to be given to the need to provide the holders of all prior charges two clear business days’ notice of the intention to appoint administrators.
Practitioners should take every step possible to bring the Notice of intention to appoint an administrator to the attention of the QFCH. In Re Vybra Solutions Ltd, for example, the following steps were taken:
- Confirm in writing whether the QFCH is willing to accept service by email.
- At the request of the QFCH, service was affected at a location other than the registered office of the QFCH. It should be noted that section 1139 (1) CA stipulates that a document can be served at the registered office of the QFCH and that section 1139 (2) (b) CA states that service on an overseas company whose particulars are registered under section 1046 can be effected by serving it at a place of business of the company in the UK if there is no person who is willing or able to accept service under 1139 (2) (a).
- Utilise the services of a process server to effect personal service if the QFCH is in a jurisdiction in which that is permitted.
Although the judgment in Re Vybra Solutions Ltd says that permission to serve a Notice of intention to appoint an administrator outside of the jurisdiction is not required, care should be taken to notify the QFCH given the decision doesn’t fit neatly into the framework of service set out in the Rules.