[4] The appeal from the refusal to set aside the administration order requires leave pursuant to section 35(2)(j) of the Judicature (Northern Ireland) Act 1978 ("the 1978 Act"). The appeal from the possession order does not require leave. These two applications were heard together at the lower court, and we have heard them both together again on appeal. Given that the possession order was to take effect at 4pm on 31 October 2025, we granted a short stay pending an expedited appeal before the Court of Appeal. We then heard this appeal on 3 November 2025, reserved our decision, and maintained a stay pending the judgment of the court which we deliver today.
[5] Having previously been represented by solicitors and counsel as a director of Incartus, Mr Harvey appeared as a personal litigant to advance the appeal against both orders. He appeared on sightlink from Australia and presented his case orally and in writing. We permitted him to read from a written opening submission which was provided to us. Mr Fletcher also provided written position papers in relation to both appeals and presented oral arguments.
[6] For the sake of completeness, we note that the person who is currently in occupation of the subject premises, Mr Scott, appeared in court. We clarified that he was content that Mr Harvey represented his interests and so he did not make any further substantive submissions to us.
Case chronology
[7] The context to this case is important and is established by mapping the progress of this case throughout various legal proceedings which have occurred to date. We are grateful to Mr Fletcher for providing the case chronology to us which has been of great assistance and which we summarise as follows.
The administration proceedings
[8] On 24 May 2024, Dalriada issued an application pursuant to para 13 of Schedule B1 to the 1989 Order in its capacity as a creditor of Incartus and under para 36 of Schedule B1 to the 1989 Order in its capacity as a qualifying floating charge holder. This application was for an order placing Incartus into administration and for the appointment of Henry Shinners and Adam Stephens as joint administrators.
[9] On 27 June 2024, the administration application was heard by the judge sitting in the Chancery Division of the High Court. An objection to the administration was raised by Incartus. The judge heard oral submissions from senior counsel on both sides and provided a judgment placing Incartus into administration and appointing the joint administrators referred to above to office.
[10] Material to our consideration is the fact that the judge placed Incartus into administration and granted the order on two grounds: that (a) Dalriada was a qualifying floating charge holder of Incartus; and (b) Dalriada was a creditor of Incartus and that Incartus was insolvent on both the cashflow and a balance sheet basis.
[11] No appeal was lodged by Incartus or Mr Harvey in respect of the administration order granted on 27 June 2024.
The possession proceedings
[12] On 10 February 2025, Incartus acting by the joint administrators, issued Order 113 proceedings seeking possession of the property situated at and known as 41 Drennan Road in Lisburn. The respondent was initially represented by a firm of solicitors Donnelly Neary & Donnelly Solicitors.
[13] These proceedings were reviewed over a period of time. Then a hearing was listed to take place on 23 May 2025. However, at a further review of the proceedings on 7 May 2025, Mr Harvey applied for an adjournment of the proceedings for a period of six months to allow him to purchase the property at full market value. This application was refused. Thereafter, on 12 May 2025, Mr Harvey notified the Chancery Office that he intended to act as a litigant in person in respect of the Order 113 proceedings and Donnelly Neary & Donnelly came off record.
[14] There were further reviews before the court which led to the hearing being adjourned in May 2025 to 18 June 2025. Prior to that hearing, on 9 June 2025, Mr Harvey, acting on behalf of Abrus Resources LLC ("Abrus") issued an application seeking to remove and replace the joint administrators from office and a separate application seeking injunctive relief to restrain the joint administrators from disposing of any assets belonging to Incartus and from continuing any legal proceedings.
The proceedings brought by Mr Harvey
[15] On 13 June 2025, the Order 113 proceedings, the removal and replacement application and the injunction proceedings were reviewed and listed for hearing on 20 June 2025. On that date, the judge dismissed the injunction proceedings and listed the Order 113 for hearing on 18 July 2025. On 18 July 2025 the removal and replacement application was listed for hearing on 3 October 2025.
[16] The hearing of the removal and replacement application on 18 July 2025 was ultimately vacated. A hearing was relisted for 20 July 2025. However, on 23 July 2025, an application was brought by Abrus, the Kids Pony foundation, Drennan Hill Ltd and Incartus shareholders, seeking to set aside the administration order made by the judge on 27 June 2024. By this stage Mr Harvey acted as a litigant in person on behalf of all of the applicants.
[17] The matter was reviewed on 28 July 2025 when various applications were made about how the case should proceed. Ultimately, the judge decided that the set aside application needed to be determined prior to determining the Order 113 application. The matter was timetabled on that basis and the removal and replacement application was stayed, as it could not persist whilst the set aside application was being pursued.
The orders under appeal
[18] On 3 October 2025, a final hearing took place the outcome of which is the subject matter of this appeal. We have had the benefit of a transcript of the full hearing and the ex-tempore judgments given by the judge during it. From this material we glean the following matters.
[19] The judge agreed to hear the applications in the sequence which had been suggested by Mr Harvey. After hearing submissions from both sides, he dismissed the set aside application. In respect of the Order 113 proceedings, the judge ordered that possession of the property should be granted to the joint administrators by no later than 4pm on 31 October 2025. However, he listed the Order 113 proceedings for further review on Monday 3 November 2025, so that further and consequential directions or orders could be made in respect of the removal of any animals that remained on the lands as at 4pm on 31 October 2025.
[20] Various notices of appeal were then filed by Mr Harvey on behalf of all the applicants dated 7 October 2025.
The judge's rulings
[21] We set out the salient aspects of the judge's ex-tempore rulings in summary. First, in relation to the set aside application the judge found as follows:
"This is an application for a review of an administration order made by this court on 27 June 2024. The application for review - it is not an appeal against the order. No appeal - was made. But it is an application for review under Article 371 of the Insolvency Order and thus, involves the exercise or potential exercise at the court's discretion under that provision. I was taken to the leading case of Papanicola v Humphreys which guides the court in terms of the issues which it has to consider. I do not rehearse those for the court, but they were helpfully set out in Mr Fletcher's skeleton.
In summary, the ones which I think are most relevant is the question of whether there have been exceptional circumstances and whether those circumstances involve a material difference to what was before the court and specifically there are no limits to the factors which the court may take into account. I find that none of those are met. The application will be rejected, but in deference to Mr Harvey, I am going to deal with the representations that he has made."
[22] In the course of his ruling, the judge also describes that what he heard at the hearing:
"... has been a repeat of information that was adduced in advance of and considered when the order was originally made in June 2024. Mr Harvey does not agree with that. He argues that there is a procedural irregularity in that the - there was a failure to effect a formal deed of assignment between Bluefin and Dalriada, who is the respondent in this case, that notice was not given and that because of that or the failure to adhere to that, stricture is fatal to the application of the jurisdiction, rather of the administrators, in that the underlying qualifying floating charge did not transfer. He relies on section 87 of the Judicature Act."
[23] The judge deals with the arguments made by Mr Harvey in the following way:
"Fundamentally, that is just wrong and fundamentally misconceived. I have recited the orders which were made by both the Pensions Regulator under the 1995 Pensions Act and the order made by the High Court of England & Wales but, just for the record, the Pension Regulator's order provided 'pursuant to section 9 of the Pensions Act 1995, it is hereby ordered that all property and assets of the scheme - heritable, movable, real and personal of every description and wherever situated and all rights pertaining to that property be vested in, assigned to and transferred to Dalriada's trustees of the Scheme.'"
The High Court order was in much the same terms and said:
"All property and assets consisting of the Trust assets, where heritable, moveable, real and personal of every description and wherever situated be vested in, assigned to and transferred to the claimant as trustee thereof."
[24] Following on from the above analysis, the core of the judge's ruling was expressed as follows:
"It is - as a matter of law, there is no doubt in the court's mind that those provisions were sufficient to transfer all assets as between retiring and incoming trustee."
[25] The judge also dealt with Mr Harvey's procedural point which was that insufficient notice was given to the directors pursuant to para 13 of Schedule B1 to the 1989 Order. The judge considered this a flawed argument for the following reasons:
"I am entirely satisfied that the requisite period of five days' notice was provided under the provision and, in any event, on the circumstances and facts of this case, there was no prejudice because, as has been pointed out numerous times in this court, the - there was a concerted effort to - to challenge the proceedings which ultimately led to the determination of this court and the order made in June 2024. So, both procedurally as a matter of law under the rules and in practical terms there was no failure to provide notice."
[26] The judge then dealt with Mr Harvey's claims in relation to fraud and misrepresentation. He also records that:
"On the question of insolvency, it has been acknowledged in this court by Mr Harvey that the company is insolvent."
[27] For the reasons provided which we have summarised above, the judge was disinclined to exercise his discretion under Article 371 of the 1989 Order to set aside the administration order, because the gateway requirements were not met applying Papanicola v Humphreys . He also found that the arguments made by Mr Harvey were substantially a rehash of arguments which the court had already considered.
[28] The judge also granted the possession order having considered the objection raised by Mr Harvey to the possession order. However, he went on to say:
"Mr Harvey, in deference to your issue about the practicalities of moving, I will allow you to adduce affidavit evidence, but - but it would be affidavit evidence of an independent person who will - who is experienced in these matters. I suggest that the court appoint either Mr James Armstrong of Armstrong auctioneers or a representative of Wilsons Auctions to attend the site and to give the court its opinion on an orderly disposal or dispersal of the animals on the subject property."
[29] Mr Harvey then asked for a stay of the possession order for a period of four months. The judge refused a four month stay but granted a four-week stay pending further order of the court. In doing so he said:
"Mr Harvey, if you can move the animals within four weeks, all to the good, if not this court will - this court will reconvene four weeks hence."
[30] The judge also provided a helpful written judgment refusing leave to appeal the refusal to set aside the administration order which we have considered. At para [10] of that judgment the judge stated as follows:
"In the court's view that threshold (for leave) has not been met in relation to the application to afford leave to appeal. The appellant has consistently failed to engage with the realities of the legal effect of:
(a) a Pensions Transfer Order dated 10 January 2017 made pursuant to section 709 of the Pensions Act 1995; or
(b) The effect of an order of the High Court of England & Wales having similar effect."
[31] At para [12] he also stated:
"[12] The applicant throughout, what has been extensive litigation directed at injuncting or challenging the appointment of the present administrators, has consistently failed to engage with the legal reality of this sequence of events and/or the effect of the Pension Orders themselves. There is nothing either before the court at first instance or in this application for appeal which suggests any cogent argument otherwise. That is fatal to the appeal. The case advanced is unarguable."
[32] The judge referred to Maddinglee v Associated Newspapers [2007] EWCA Civ 295 at para [45] as follows:
"The approach which should be adopted on an appeal of this kind is not, we think, in dispute. Although the exercise upon which the judge was engaged was not the exercise of a discretion it was similar in that it involved carrying out a balancing exercise upon which different judges could properly reach different conclusions. In these circumstances it is now well settled that an appellate court should not interfere unless the judge has erred in principle or reached a conclusion which was plainly wrong or, put another way, was outside the ambit of conclusions which a judge could reasonably reach."
[33] The judge goes on in para [14] of his ruling to find that in its application, the applicant has not pointed to any irregularity or vitiating factor in the order of the court. Rather, the judge was of the view that what the applicant has done is to repeat the mantra that the power to make a possession order under Order 113 is not exercisable absent the qualifying debenture having vested in the respondent - a point the judge had already dealt with.
[34] The overall conclusion of the judge is found in the concluding paras [15] and [16] of the leave ruling where the judge states that:
"...The applicant fails to grapple with the realities of the effect of the vesting effect of the Pensions order but, in addition, and (in relation to both grounds) fails to acknowledge that the Court Order dated 27 June 2024, by which the administrators were appointed [was], not only endorsed the appointment of the administrators pursuant to the debenture but also accepted (for entirely different reasons) that the applicant was insolvent and that the administration was the correct option in all the circumstances... Nothing has been adduced to counter the factual insolvency of the company at the relevant time."
The grounds of appeal
[35] This case has suffered from a multitude of paperwork which is repetitive and dense. The presentation of the case has added to the burden of the court in navigating what exactly is in issue and the legal basis for the claims made. However, in the speaking note filed for this hearing by Mr Harvey, the grounds of appeal which focus upon the administration order are set out with most clarity as follows:
(i) Ground 1 - apparent bias and procedural unfairness, pursuant to article 6 of the European Convention on Human Rights in relation to how the judge conducted hearings before him.
(ii) Ground 2 - failure to serve a paragraph 87 notice, pursuant to Schedule B1 to the Insolvency Act 1986 which led the judge into error in upholding the administration order made on 27 June 2024.
(iii) Ground 3 - misapplication of the law regarding the Dalriada Trustees' title to the debenture which led the judge into error in finding that Dalriada Trustees held a valid qualifying floating charge or acquired title to the debenture by virtue of the determination of the Pensions Regulator or the judgment in Dalriada Trustees v Bluefin Trustees [2017] EWHC 1085.
(iv) Ground 4 - exclusion of relevant and material evidence including the administrator's affidavit and protective writ in relation to defamation proceedings.
(v) Ground 5 - the accumulative effect of this was the denial of a fair hearing.
(vi) Ground 6 - the constructive denial of access to justice done.
[36] The relief sought by Mr Harvey is also set out as follows:
(i) That the orders under appeal be set aside;
(ii) A declaration that the administration was void ab initio for failure to comply with statutory preconditions; and/or
(iii) Alternatively, that the matter be remitted for rehearing before a different judge; and
(vi) Consequential ancillary relief, including:
(a) Permission to adduce limited fresh evidence on the protective writ.
(b) Specific disclosure from the administrators' solicitors.
(c) Liberty to apply for cross-examination of Mr Shinners if the conflict cannot be resolved on the papers.
(d) A stay/extension to avoid nugatory appeal.
The arguments on appeal
Mr Harvey
[37] Mr Harvey presented his arguments before this court articulately. In summary, he reiterated the points made in his written argument. Specifically, he advanced what he variously called a jurisdictional or standing point which is summarised in the following propositions:
(i) There was no executed deed of absolute assignment from Bluefin to Dalriada vesting or declaration under the Trustee Act (Northern Ireland) 1958 or specific vesting order detailing the debenture or loan receivables of High Court.
(ii) There was no express written notice of any assignments served on Incartus under section 87 of the 1978 Act; and
(iii) There was no Companies House alignment of this change or complete security pack.
[38] Therefore, Mr Harvey stated:
"This is a jurisdictional defect which is fatal and not capable of cure by any insolvency or any delay. The court who has been misled should review/rescind the order under Article 371, Insolvency (Northern Ireland) Order 1989."
[39] Mr Harvey also maintained that even if a deed existed, the respondent has provided no evidence of a written notice. Thus, Mr Harvey made the case that a legal assignment is only "effectual in law" from the date of written notice to the debtor pursuant to section 87 of the 1978 Act. He maintained that the notice must clearly communicate the assignment and whilst there is no special form, accuracy matters and this was lacking in this case. Drawing all of the above together we can see that Mr Harvey's primary claim was that Dalriada never held legal title and was not the holder of the charge.
[40] Mr Harvey made further claims against one of the joint administrators, Mr Shinners, to the effect that he should be removed. During the hearing he also made a direct case (which had not appeared in the notice of appeal or skeleton arguments) that A&L Goodbody also had a conflict, although this did not appear on the notice of appeal and, so, is not properly before this court.
[41] Finally, Mr Harvey's case was that the orders from England & Wales and of the Pensions Regulator were not definitive. He did not dispute that at the relevant time there was a cashflow deficit so much so that the company was insolvent and could not pay the debt of £20million that it owed. However, he made the case that the company was balance sheet solvent due to assets. In addition, Mr Harvey argued that there should an immediate stay of the order given the animals on site who needed to be removed in a much more staged way given health and safety concerns, risk to staff and logistical issues.
The respondent's arguments
[42] In reply to the above arguments, Mr Fletcher relied on the fact that the set aside application pursuant to Article 371 of the 1989 Order involves an evaluative exercise on the part of a judge. He stressed the fact that this company was clearly insolvent and the illogicality of the argument that it should come out of insolvency. He argued that the judge properly decided the debenture point based on the Pensions Regulator's determination and the England & Wales court order and that the interest was transferred to Dalriada. Mr Fletcher also maintained that this case was outside the scope of section 87 of the 1978 Act. He disputed that there was any procedural unfairness in this case. Finally, Mr Fletcher argued that the judge made, in his order, provision for a period of adjustment to remove animals from the site and that the Enforcement of Judgments Office in liaison with DAERA would have the expertise to deal with this.
Our conclusions
[43] We have considered the competing arguments made in written and in oral submissions to us and find as follows.
[44] The first ground of appeal relates to jurisdiction. Article 371 of the 1989 Order is in the following terms:
"371. The High Court may review, rescind or vary any order made by it in the exercise of the jurisdiction under this Order."
[45] The statutory formulation is framed in broad discretionary terms. The test in relation to whether or not there should be a set aside of an order of administration pursuant to Article 371 of the 1989 Order is discussed in Papanicola (Trustee in Bankruptcy of Mak) v Humphreys & Ors [2005] 2 All ER 418 . Various propositions emerge namely:
"(1) The section gives the court a wide discretion to review vary or rescind any order made in the exercise of the bankruptcy jurisdiction.
(2) The onus is on the applicant to demonstrate the existence of circumstances which justify exercise of the discretion in his favour.
(3) Those circumstances must be exceptional.
(4) The circumstances relied on must involve a material difference to what was before the court which made the original order. In other words there must be something new to justify the overturning of the original order.
(5) There is no limit to the factors which may be taken into account. They can include, for example, changes which have occurred since the making of the original order and significant facts which, although in existence at the time of the original order, were not brought to the court's attention at that time.
(6) Where the new circumstances relied on consist of or include new evidence which could have been made available at the original hearing, that, and any explanation by the applicant gives for the failure to produce it then or any lack of such explanation, are factors which can be taken into account in the exercise of the discretion."
[46] Applying the above principles to the facts of this case we find that the application to set aside the administration order cannot succeed. The factual matrix informs us that the set aside application was brought more than one year after the administration order was made during which time steps were taken by the administrators. Save Mr Harvey becoming a personal litigant and having to conduct his own research, there has been no adequate explanation for the delay. Rather, in common with the judge we see this case as an attempt to relitigate matters already decided. That is because the key arguments have been made before and are now simply repackaged by Mr Harvey. We could dismiss the case on this basis alone, however, we have also considered the merits in reaching our conclusion as follows.
[47] Fundamentally, in our view, the judge was entitled to rely on the Pensions Regulator's order and the order of the High Court of England & Wales which both validated the transfer of the debenture to Dalriada. To our mind these determinations are sufficient to establish a valid transfer of the debenture interest from Bluefin to Dalriada as the judge determined. Dalriada was therefore a creditor of Incartus and so was entitled to obtain an administration order pursuant to paragraph 13(1)(c) of Schedule B1 to the 1989 Order as the company was insolvent. We do not see that section 87 of the 1978 Act has any application.
[48] As to notice, we agree with Mr Fletcher that there is nothing prescribed in paragraph 27 of Schedule B1 to the 1989 Order concerning an appointment of an administrator by a qualifying floating charge holder or by a creditor. Here, the company was clearly aware. In any event, as in Re NMUL Realisations Limited (in administration) [2021] EWHC 94 Ch , failure to provide the requisite notice does not render the appointment of administrators void ad initio . Furthermore, as Mr Fletcher points out in the written arguments, Companies House does not necessarily update the register of charge holders following a change in identity of the charge holder. All of these technical points made by Mr Harvey are without merit.
[49] We repeat the fact that these arguments were either not made or not strenuously pursued before the judge in June 2024, when Mr Harvey was represented by senior counsel. The case made was rejected by the judge. In our view, there are no exceptional circumstances, or any material change in circumstances which would merit a setting aside of the administration order.
[50] In addition, whilst the argument is advanced that the debenture transfer was invalid, the administration was also granted on the alternative ground of insolvency. Hence, even if there was a point about jurisdiction or the transfer of the debenture (which we do not accept), the administration would still stand based on insolvency. The reason is simply stated. It would be perverse if the administration order was set aside in relation to a company that had failed to pay £20million of debts. Mr Harvey's argument that in the absence of validity, the assets would effectively be bona vacantia also exposes the weakness of his position.
[51] We have considered all of the other arguments made in writing including references to other statutes such as the Trustee Act (Northern Ireland) 1958. The argument in relation to that was unparticularised and, therefore, of no merit. If we have not mentioned some other point specifically from Mr Harvey's papers it is because the point was a repeat of other points, bare assertion, or of no relevance. Accordingly, we dismiss all grounds of appeal raised in relation to the jurisdiction or standing of Dalriada in relation to the administration order.
[52] We are also unconvinced that there is any merit in the argument based upon the apparent bias of the judge and procedural unfairness. The height of this claim was that the judge said he had read the papers for the hearing in September and questioned Mr Harvey on various propositions. Litigants should realise that judges are quite entitled to conduct hearings in this way both to save time and to get to the real issues. Having read the transcript, we consider that the hearing in September 2025 was entirely fair. The judge allowed Mr Harvey a considerable amount of time to speak. It was not necessary to have all matters read out given that the judge had obviously considered the papers in advance. In addition, we see no unfairness in the July 2025 hearing. The case was adjourned at that time which dealt with the fact that Mr Harvey himself, raised that he was ill and needed more time.
[53] Overall, we find that this case was dealt with in an extremely fair manner. Indeed, we would suggest that Mr Harvey was afforded considerable latitude to file extensive submissions and make a case that had already been litigated upon in the context of an administration order that was granted in June 2024. The claims of apparent bias and procedural unfairness, pursuant to article 6 of the European Convention on Human Rights in relation to how the judge conducted hearings before him are unsustainable. Therefore, we dismiss the grounds of appeal relating to bias and the alleged absence of a fair hearing.
[54] A final argument is advanced in relation to how the judge dealt with a defamation writ which had been issued by Incartus prior to its administration. This argument has no traction whatsoever. It is collateral to the main issue and so the judge was entirely justified in declining to have it aired. Mr Henry Shinners also averred in an affidavit that he was not aware of this action. The permission to adduce limited fresh evidence on the protective writ was doomed to fail. This appeal point is totally without merit.
[55] The grounds of appeal against the possession order are reliant upon the appeal against the administration order which we find unarguable. There was no additional argument made against the legality of the possession proceedings. The remaining issue is that Mr Harvey had asked for a six-month stay to allow him to buy the property at an earlier stage and then during the hearing in September 2025 he requested a four‑month stay.
[56] The question of a stay is governed by Order 59 rule 13 of the Rules of the Court of Judicature which provides:
" 13. —(1) Except so far as the court below or the Court of Appeal may otherwise direct—
(a) an appeal shall not operate as a stay of enforcement or of proceedings under the decision of the court below;
(b) no intermediate act or proceeding shall be invalidated by an appeal."
[57] The basis for seeking a further stay in this case is that there are animal welfare issues. Mr Harvey helpfully told us that many animals have already been moved, but some of the more exotic animals could not be removed in time to comply with the order of 31 October 2025. We understand the point. However, we highlight the fact that the judge provided for this eventuality within his directions when he stated that the parties could return to court to consider the issue of removal of some of the animals after 31 October 2025.
[58] Given this facility that was left open by the judge, an appeal to deal with animal welfare issues was entirely unnecessary. Out of an abundance of caution, we will maintain the stay pending the matter returning to the High Court to deal with the remaining issue of the removal of some of the animals. We direct that Mr Harvey file an affidavit in relation to this one week from today and we will ask that the matter is listed before the Chancery judge thereafter on 2 December 2025 for disposal.
Conclusion
[59] Accordingly, for the reasons given, we refuse leave to appeal against the administration order and dismiss the appeal against the possession order. We remit the matter on the question of a stay of the possession order due to animal welfare concerns to the High Court Chancery judge. A precautionary stay will remain in place pending that hearing. We will hear the parties as to costs.