Debtors Bankruptcy Petitions

These will shortly be made by Debtors online. We comment further on the change below, but we note that it is consistent with the Government's approach on a number of fronts to cut the taxpayer's bill for court costs.

The Insolvency Service has confirmed in the summer edition of its quarterly newsletter that applications for bankruptcy orders by debtors (as distinct to creditors) will be moving from the Courts to an online portal run by the Insolvency Service with effect from April 2016.

The news in January of this year that the government planned to increase the bankruptcy petition threshold to £5,000 (subject to parliamentary scrutiny) from 1 October was greeted with mixed reaction. On the one hand, it was welcomed in that the threshold of £750 which had been in place since 1986 was wildly out of date.

RE: BPE SOLICITORS & ANOTHER V GABRIEL [2015] UKSC 39 

The Supreme Court considered whether a trustee in bankruptcy who was considering adopting proceedings and lodging an appeal should be personally liable for historic adverse costs which had been awarded against the bankrupt prior to the commencement of the bankruptcy.

A Trustee in Bankruptcy’s liability for litigation costs

Bankruptcy remains the most well-known, and perhaps most feared, of the personal insolvency processes. Since the current threshold was introduced 30 years ago, it has been used by creditors owed as little as £750 as a dire threat to extract payment from reluctant debtors. However, the Government has stepped in and is squeezing the bankruptcy process, seeking to ensure bankruptcy is reserved for the most appropriate cases and encouraging alternative regimes for the management of small debts.

In a challenging economy bankruptcy increasingly stands accused of constituting a mechanism for debtors to escape their responsibilities at their creditors' expense. It understandably remains a live debate as to whether a bankrupt should be afforded the means of a protected pot of money for his future use while his creditors are left unrecompensed for their loss. The debate is not new, but the balance has perhaps shifted in a climate where creditor losses are felt particularly keenly.

Income payments orders (IPOs) are an essential tool for the trustee in bankruptcy in realising a bankrupt’s assets. Until recently, it had been assumed that, absent circumstances akin to fraud, a trustee in bankruptcy could not touch a bankrupt’s undrawn pension. However, in Raithatha v Williamson, the court decided that an income payments order may be made where the bankrupt has an entitlement to elect to draw a pension but has not exercised it at the time of the application. 

Drawn versus undrawn

In our recent article of 4 November 2014 we referred to a new case where the controversial decision in Raithatha v Williamson would be reconsidered. 

On 17 December 2014 the High Court handed down judgment in the case of Horton v Henry. The decision has been highly anticipated. 

The recent English High Court decision in Horton v Henry [2014] EWHC 4209 (Ch)has conflicted with the earlier decision in Raithatha v Williamson [2012] EWCA Civ. 799 and leaves the law unclear as to whether a debtor’s pension forms part of their bankruptcy estate.

A trustee in bankruptcy’s entitlement to seek an income payments order (“IPO”) in respect of a bankrupt’s income is governed by section 310 of the Insolvency Act 1986 (the “IA”). Under section 310(7) of the IA the income of a bankrupt:

Is a pension pot beyond the reach of a trustee in bankruptcy? Conflicting High Court decisions reviewed below raise an interesting conflict between practical policy and strict technical interpretation

In both cases, the question was whether a trustee in bankruptcy can obtain an Income Payments Order (IPO) in respect of pension entitlements under a personal pension plan, where no election to draw the pension had been made prior to the Bankruptcy Order.

Preamble

The background