In March 2018, the court considered the NOA in NJM Clothing Ltd, Ross Higgins v Fashion Design Solutions Ltd and Asis Couture  EWHC 2388 (Ch) and the effect of the directors' failure to state a correct date and time of the appointment in the notice in accordance with rule 3.24(1)(j) of the Insolvency (England and Wales) Rules 2016.
The court proceeded on an assumption that the notice was defective and had to undertake an analysis of whether it should validate the notice. It was ruled that an administrators appointment had to take place before the filing of the notice of appointment; however it was concluded that if a notice which did not specify the time and date was defective, that defect would not invalidate the appointment under rule 12.64.
Following this case, a number of questions remained unanswered. How can an appointment be made prior to filing when considering the wording under paragraph 31 of Schedule B1? What would have been the position if no declaration under rule 12.64 had been forthcoming?
The court did not provide any guidance or clarity and the case gave rise to concerns that the practice of NOAs relying on the filing itself would be defective.
However, Re Towcester Racecourse Company Ltd (THE) (in Administration)  EWHC 2902 (Ch) provided much needed clarity on the issue. It was held that a NOA is not defective if it refers to the date and time of the court's endorsement as the date and time of appointment and it is possible for administrators to be appointed at the same time that the notice is filed.
The decision has been welcomed and has provided clarity on the issues that followed the NJM Clothing case. The clarification allows established practice to continue without fear that NOAs are vulnerable to potential defects.