Elaine Palser and Helen Pugh successful in High Court claim alleging negligence against trustees in bankruptcy

Elaine Palser and Helen Pugh, instructed by RPC and CMS Cameron McKenna respectively, acted successfully for the first and second trustees in bankruptcy (T-in-B) respectively in the recent High Court decision of McFadzean v Martinez [2026] EWHC 426 (Ch).

A former bankrupt sought the court’s leave to sue her two former trustees in bankruptcy for alleged negligence in the sale of a substantial French property.

The judgment considers the test for leave to bring a claim against a trustee pursuant to section 304 of the Insolvency Act 1986 where the proposed claim is brought by a former bankrupt and where the trustees have already had their release.  Whilst the court will weigh up all the relevant factors in each case, the focus will generally be on satisfying the court of a reasonably meritorious case.  In many cases, this will require the provision of expert evidence.

In this case, there was no required expert evidence (on valuation, French planning law or French contract law) to establish a reasonably meritorious case. Leave was therefore refused. It is clear from this decision that obtaining the court’s leave is not a mere formality.

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Elaine Palser has an extensive chancery and commercial practice, with an emphasis on contentious trusts and probate, insolvency, commercial disputes and professional negligence. Elaine Palser’s insolvency practice covers: corporate and personal insolvency; related professional negligence; insolvency claims containing a trusts dimension; and commercial and contractual disputes arising within the insolvency context. Elaine is recommended as a leading barrister for insolvency, as well as for her crossover specialisms of trusts and professional negligence.

To find out more about Elaine, contact Matt Sale on +44 (0)20 7427 4910 or Chris Rowe on +44 (0)207 427 4911 for a confidential discussion.

Helen Pugh specialises in general commercial litigation, civil fraud, contentious insolvency and company law issues, and professional negligence. She is a sought-after junior in the full range of insolvency litigation. Her experience includes directors’ disqualification proceedings, misfeasance/breach of fiduciary duty claims, unlawful distribution claims, antecedent transaction challenges, and beneficial ownership disputes, as well as wrongful and fraudulent trading. She regularly appears in specialist proceedings under the Insolvency Act such as petitions of overseas companies, disputed petitions, admin extensions, and applications for directions by insolvency practitioners.

To find out more about Helen, contact  Dave Lovitt on +44 (0)20 7353 6381 for a confidential discussion.

News 25 Mar, 2026