In (1) James Robert Tucker (2) Jeremy Spratt (Joint Supervisors of Energy Holdings (No 3)(in liquidation) v Gold Fields Mining LLC [2009] EWCA Civ 173 the Joint Supervisors (JS) of a Company Voluntary Arrangement (CVA) appealed against a decision that they had wrongly excluded a claim form on the grounds that it had been out of time.

Gold Fields Mining (GFM) lodged a claim form for $230m in respect of the CVA of Energy Holding (No3) on 21 June 2007, some time after the deadline for receiving claims, which was 16 May 2005. The CVA contained a clause (paragraph 4.3) which stated that late claims would not be admitted unless the JS determined that the failure to lodge a claim form earlier did not result from wilful deceit or lack of reasonable diligence on the part of the creditor. The paragraph went on to state that those creditors who were not given notice of the creditors' meeting would have 28 days from the date they became aware of the meeting in which to lodge their claim form. GFM did not have notice of the creditors' meeting but it then failed to lodge its claim within the 28 days set out in the CVA. The JS contended that the first section of the paragraph only applied to creditors with notice of the creditors meeting so that the 28 day bar period in relation to creditors without notice of the meeting was absolute. GFM argued the opposite.

The Court of Appeal held that on its true construction, the clause meant that late claims of all creditors, both those notified of the creditors' meeting and those who were not, could still be admitted if the delay was not due to wilful deceit or lack of reasonable diligence. It could not be the case that the 28 day bar on the claims creditors who were not notified of the meeting was absolute. Lord Justice Mummery commented that if it were otherwise, there would be a striking disparity between the treatment of the two types of creditors, which could not be justified by the language of the clause or the general purpose of the CVA. Accordingly the appeal was dismissed.