Key points

  • The dismissal of the appellant’s previous application for an annulment of a bankruptcy order was a serious procedural irregularity
  • A court may annul a bankruptcy order under s 282 IA 1986 if it is satisfied that the order ought not to have been made based on grounds existing at the time the order was made
  • In relation to appeals made pursuant to s 375 IA 1986 to review or rescind the decision of a lower court, the court may consider fresh material.

The facts

Mr Richards, a bankrupt, appealed an order dated 29 November 2016 dismissing his application for an annulment of the bankruptcy order dated 19 December 2014.

The application to annul was made on the grounds that the English courts did not have jurisdiction to make the order, as the conditions in s 264 Insolvency Act 1986 were not met.

In making the application to annul, Mr Richards had placed new evidence before the court that had apparently not been considered by the Judge at that hearing on the basis that the material was not, in fact, ‘new’. This decision had been taken on the advice and recommendation of counsel for the respondent (the petitioning creditor).

The question before the court was whether that decision should be overturned and Mr Richards be given leave to appeal.

The decision

The Judge allowed the appeal, recognising that the previous judge had not attempted to assess the material, to compare it to that previously provided, or to make findings in relation to it. The approach of the judge at first instance had constituted a serious procedural irregularity and consequently the appellant had not had a fair hearing.

Richards v Vivendi SA [2017] EWHC 1581 (Ch)