To those ends, a prospective litigant must, to obtain the necessary leave, demonstrate its claim has sufficient merit. What is sufficient is affected by the circumstances and timing in which that leave is sought. Moreover courts recognise that liquidators, like administrators, often have to make decisions on the run; to expect perfection in those circumstances is unrealistic. In Sydlow (supra) Tamberlin J stated:
"The discretionary power of the court to grant leave must be exercised having regard to all the circumstances of the particular cases and bearing in mind the need to protect the integrity of its process. It does not necessarily follow that, in order to obtain leave, a prima facie case must be demonstrated. There is no specific threshold appropriate in all cases, however there must be more than mere assertion. The court's discretion may be exercised on many grounds, including, but not limited to, the sufficiency of the evidence adduced, as to the prospects of success of the action on the application for leave. " (at page 242; 165).
5 I would adopt the reasoning of Tamberlin J in Sydlow, recognising that he was at pains to avoid laying down a rigid test for when the court should refuse leave. Thus I would not adopt as a universal rule some variant of the test applicable to the setting aside of statutory demands or which draws on the analogy of interlocutory injunctions. This is because the two factors earlier identified will have a significant effect on how the court should exercise its discretion. Indeed they do so here.
6 A powerful factor operating in the present circumstances is apparent from the earlier agreed facts. It is that the Liquidator, having acted as he did in relation to the lease, completed his liquidation tasks with not a word of complaint from the Plaintiffs. They were aware from the outset that the lease was abandoned. They knew a new occupier had gone in to occupation. They happily accepted rent so rendering the occupier a tenant at will, at least. They had after all a tenant who was substituted for an insolvent company. The Plaintiffs do nothing to formalise the terms of occupation or even enquire as to who was in occupation beyond accepting cheques for rent. It was only after seven months' of rental payments that rent ceased to be paid and the new tenant vacated. It was only then that the Plaintiffs belatedly asked for assistance in identifying who took occupation with the response set out in the Agreed Facts under paras 3(16) and (17) above.
7 From the time of the Liquidator's response of 31 August 1999 until 5 April 2000 nothing was heard from the Plaintiffs. Then on 5 April 2000 a letter was received serving the District Court process. At that time the Liquidator was in no position to be indemnified from the assets of the liquidation, having completed his tasks.
8 The Plaintiffs through their Counsel frankly concede that had the substitute tenant continued to pay the rent and stayed in occupation, the Plaintiffs would have had no complaint. Essentially what the Plaintiffs wanted was to have it both ways. To approbate the Liquidator's actions leading to the new tenancy whilesoever the rent was paid, but reprobate it after later default.
9 Quite apart from any argument based upon waiver, litigation brought in such circumstances has all the hallmarks of the spurious. That the litigation does not interfere with the particular current winding up does not detract from its capacity to do so in a broader sense. If leave were to be given following completion of the liquidation and for litigation so weakly grounded no future liquidator could have any sense of safety in carrying the onerous tasks imposed. No liquidator could feel safe that there would not be some belated action brought at the very time when the liquidator has no longer the wherewithal to be indemnified from the company's assets. It would be incongruous indeed if a plaintiff were precluded from bringing such an action during the winding up because of its capacity to interfere with that process, but were to be advantaged by holding back and suing thereafter. Nothing could be more calculated to interfere with the integrity of the liquidation process.
10 Turning to the merits of the claim, it is difficult to understand, as the Plaintiffs' argument assumes, why a disclaimer would have been unimpeachable but effective abandonment of the lease, when openly disclosed to the lessor, should have a more sinister cast. The Plaintiffs could readily at the time have treated the abandonment of the lease as a repudiation having the effect of a disclaimer and proved in the liquidation accordingly. Instead, knowing of the substitution, the Plaintiffs were content to receive the rent, though lower.
11 I need express no view on a final basis as to whether a liquidator could be said to owe a lessor any kind of duty, whether of care or otherwise, which would preclude the abandonment of the lease. It suffices for me simply to say that such a contention faces some considerable difficulty. While that is a factor which may be weighed in the balance, the earlier factors I have identified in my opinion suffice to decline leave to the Plaintiffs even without that additional factor.