North British Housing v Sharples [2010] EWCA Civ 539 [Not on Bailii or Lawtel]
This is the second permission to appeal hearing on this topic that we have reported recently, after Godfrey v A2 Dominion (on which we are still seeking more detail). Sadly the transcript of the judgment in this renewed application for permission hearing is also short of detail, but it does set out the issue on appeal. More information on this case would also be gratefully received if anyone from Glaisyers (or Jan Luba QC) are reading.
The issue is whether possession proceedings are a ‘remedy against the person or the property of the bankrupt in respect of a debt provable in the bankruptcy’ (s.258 Insolvency Act 1986) and thus barred under s.186(3)(a).
As far as I can gather, the tenant, S, had an assured tenancy. The tenant went bankrupt and, at some point after that,North British brought possession proceedings (presumably for rent arrears) and obtained a possession order. S appealed, presumably lost and applied for permission to appeal to the Court of Appeal. On the paper application, Patten LJ refused permission on the basis that:
the sense behind the judgments in Ezekiel v Orakpo [1977] QB 260 and Harlow District Council v Hall [2006] 1 WLR 2116 , together with the apparent policy of excluding an assured tenancy from the definition of the property comprised in the bankrupt’s estate in section 283 of the Insolvency Act 1986, give the present appeal somewhat low prospects of success.
On renewed application, S, via Jan Luba QC, argued that this case could be distinguished on its facts from both Ezekiel and Harlow v Hall as here the possession order was made after tenant’s bankruptcy order. Further, S argued:
that section 285(6) of the 1986 Act expressly provides that references in section 285 to the property or goods of a bankrupt are to any of his property or goods whether or not comprised in his estate.
This would be an issue of wider application – not just assured but also secure tenancies, now that these no longer end on possession order but on eviction.
We’ll watch for this appeal with interest. At a guess it will be joined with Godfrey v A2 Dominion, which appears to be similar. More on both cases as and when we get it.