In Preston and another v Green and others, Re Cre8atsea Ltd  EWHC 2522 (Ch), a former director claiming creditor status applied to rescind a winding up order under rule 7.47 of the Insolvency Rules 1986 (IR 1986) some two years after it was made. The court held that the applicant had no standing to apply as he was not a creditor but it considered whether the application would have been granted, had the applicant had standing.
The court held that CPR 3.9 (concerning relief from sanctions) applied to applications for an extension of time to file a rescission application and this was not an appropriate case to extend time. Time extensions to make an application for rescission should be exceptional and for very short periods, rule 7.47(4), IR 1986 requiring the application to rescind to be made within five business days after the winding up order. The delay in applying had not been adequately explained. No exceptional circumstances were demonstrated to satisfy the court that an extension of time should be granted.
The court considered the reasoning in previous cases including Metrocab Ltd and another  EWHC 1317 (Ch), where the court had considered the principles to be applied to the exercise of discretion to extend time and held that the check list in CPR 3.9 applied. For details of the court’s reasoning in Metrocab Ltd see Legal Update, The factors that will determine an out-of-time application to rescind a winding up order.
In holding that CPR 3.9 applied the court confirmed it was doing this for additional reasons to those given in Metrocab. CPR 3.9 had been held to apply to an application to extend time for the filing of an appeal against a decision of liquidators to admit a proof of debt in McCarthy v Tann  EWHC 542 (Ch). The reasoning was that an appeal against a rejection of proof is a challenge to a decision made by an office holder and involves litigation. The application to extend time for bringing an application to challenge was the first step initiating litigation. The CPR did not necessarily apply to all extensions of time provided by the Insolvency Act 1986 or IR 1986, it would not apply to an office holder failing to file a report for example: that is clearly not litigation and does not initiate a challenge. However, the application of CPR 3.9 here to applications to extend time for rescission applications is not inconsistent with IR 1986 and applied.