Amber Construction Services v Ilyrian Construction: cross-claim and invalid application block winding-up petitions

The Insolvency and Companies Court has granted a contractor final injunctions restraining a subcontractor from presenting winding-up petitions, finding that a substantial cross-claim answered both debts relied on.

Chief Insolvency and Companies Court Judge Briggs gave judgement in Amber Construction Services Ltd v Ilyrian Construction Ltd [2026] EWHC 2603 (BP) on 16 October 2026. Amber applied under rule 7.24 of the Insolvency (England and Wales) Rules 2016 in respect of two statutory demands dated 15 November 2025, covering works from 2019 and 2021. Ilyrian relied on £27,119.90 for the first project and £39,329.00 for the second, abandoning the 12% interest originally claimed.

The test

Presentation will be restrained where the debt is disputed on genuine and substantial grounds. Citing Elevate Estates Management Ltd v Fine Star Ltd [2026] EWHC 1831 (Ch), the judge said a ground must survive being probed. A cross-claim must be genuine and serious under Re Bayoil SA and must equal or exceed the undisputed debt. A failure to litigate it may be weighed, but is not decisive: Dennis Rye Ltd v Bolsover DC [2009] EWCA Civ 372.

Alton: three independent answers

On the 2019 works, Amber's delay cross-claim had substance. It was supported by a notice of specified default from November 2019 and payment notices from 2020 recording a deduction of £62,203.39. Amber had not particularised how it reached 111 days of delay, but the judge inferred that over six years had left documents unavailable, which went to detail rather than existence. Missed payment notice deadlines under the Housing Grants, Construction and Regeneration Act 1996 did not bar the cross-claim, applying Wilson and Sharp Investments Ltd v Harbour View Developments Ltd [2015] EWCA Civ 1030.

Separately, Ilyrian's payment application was invalid under clause 6.4 of the subcontract, which made a valid application a condition precedent to payment and prescribed its contents. It was not addressed to Amber and omitted the order number, job title and site address. Relying on Netomnia Ltd v MJ Quinn Integrated Services Ltd [2026] EWHC 1824 (TCC), the judge held that agreed content requirements are enforced as written. Amber's later valuation could not cure the defect, since post-contractual conduct is inadmissible as an aid to construction and Ilyrian disclaimed any estoppel.

The claim was also statute-barred. On Ilyrian's evidence the final date for payment was 11 March 2020, so six years expired on 11 March 2026. The final payment notice provision in the JCT subcontract did not postpone an accrued interim cause of action, and the December 2025 consent order restrained only presentation of a petition, leaving Ilyrian free to sue or adjudicate.

Mander: debt established, but outweighed

The 2021 works were agreed orally, and the outcome differed. Amber had deducted £22,390.50 for fire certification, third-party rectification and overheads. The judge found these largely unsupported. A 2022 account summary recorded that fire certification had recently been supplied, the £9,470 rectification figure rested on a two-line third-party application with a blank job number, and the overhead charge was unparticularised. Unlike the Alton cross-claim, no contemporaneous document quantified them.

The whole Mander debt was therefore not genuinely disputed. Even so, the Alton cross-claim, put by Amber at a net £47,728.01, exceeded it by £8,399.01. A cross-claim need not arise under the same contract, and both sides had left the Mander account untouched since 2021, which the judge described as a stand-off. Amber's failure to sue cast no doubt on its claim.

Final injunctions were granted on both demands, and counsel were invited to agree a draft order and costs.