[2025] EWHC 2316 (Ch)

The Defendants’ answer to the Claimants’ further arguments

As regards the Claimants’ point that whether a person can waive performance of a statutory requirement depends on legislative intention, having found that there is an established legislative intention to create a statutory trust, that question does not arise. It is established that that trust is a trust to fulfil the statutory purposes, not a trust of assets on behalf of particular persons. There is, therefore, no person who is able to waive performance of the statutory trust.

As to the argument that it might operate harshly on a liquidator to have unlimited liability in relation to his provision of services for which he may have charged only a small fraction of the value for which he might be held responsible, that is not a basis on which I could find for the Defendants. There is a policy point for legislators here as to whether it would be a good thing or not for insolvency practitioners to be able to limit their liability when acting as liquidators. There are arguments both ways as noted by Sargant LJ in City Equitable in the passage that I have reproduced at [‎58] above. I must apply the law as I find it, and I have found that on the basis of the law as it stands, there is no ability for provision to be made for liquidators to limit their liability.