'B’ appealed an Insolvency Act 1986 (IA 1986) s 279(3) order suspending her discharge from bankruptcy until ‘T’ confirmed B had complied with her IA 1986 duties. B traded through a company, which entered voluntary liquidation in November 2014. B’s personal guarantee of company debt led to a bankruptcy order in February 2015.
B completed the preliminary questionnaire for the Official Receiver in March 2015, stating she had been self-employed since December 2014 with £1,500 monthly income. B’s IVA proposal in May 2015, with T as nominee and supervisor, failed. T was appointed in July 2015. B completed an income and expenditure form (received by T in September 2015), stating (variable) £2,500 monthly income. T requested further information; B gave partial responses. T was unsatisfied and made the s 279 application. Substantial correspondence followed, but at the hearing B accepted she had still failed to comply with her IA obligations. The district judge stated he could either adjourn for compliance or make the order sought. B appealed, contending: post-application correspondence was irrelevant; B’s documents were not properly considered; the application’s true motive was to allow an income payments order application; T’s delay caused the application; T’s requests were oppressive; B’s responses were relatively full; Chadwick v Nash was not cited; and the form of the order is contrary to IA s 279(3) or should not have been made on the facts.
Allowing the appeal in part and setting aside the order:
- Purely historic failures satisfy the s 279(3) jurisdictional test, but remedy before the hearing goes to discretion.
- Post-application matters are relevant, per Bowles v Trefilov.
- There was no inordinate delay by T, and T’s requests were not oppressive
- B’s failures were at the lower end of seriousness.
- The order was not wrong in principle, being suspension until fulfilment of a specified condition, analogous to a s 279(5) order.
- Such an order should not be made by default, but should reflect the seriousness of B’s failures.
- The district judge failed to consider the range of possible orders or whether the order was really justified on the facts.