[1] Two points here:

(1) Such a situation arose in Tyshchenko v Hyde [2024] EWHC 838 (Ch) ('Tyshchenko'). In Tyshchenko, the debtor/bankrupt was made bankrupt on her own petition (paragraph 11). The debtor/bankrupt later issued, amongst other things, an application for an order, staying her bankrutpcy (paragraph 16).

(2) For completeness, the language is no longer of a debtor's petition - it is now the debtor's application.

Prior to 6 April 2016, a debtor could make himself/herself bankrupt by presenting his/her own (debtors') bankruptcy petition. On 6 April 2016, a new scheme was introduced. This new scheme is set out in the Insolvency Act 1986, sections 263H-263O, all contained in Chapter AI entitled 'Adjudicators: Bankruptcy Applications by Debtors and Bankruptcy Orders'

Section 263H is entitled 'Bankruptcy applications to an adjudicator' and reads:

'(1) An individual may make an application to an adjudicator in accordance with this Chapter for a bankruptcy order to be made against him or her.

(2) An individual may make a bankruptcy application only on the ground that the individual is unable to pay his or her debts.'

Creditors are not involved in the presentation of the debtors bankruptcy application before the adjudicator.

Registrar Baister in Budniok v Adjudicator, Insolvency Service [2017] EWHC 368 (Ch)('Budniok'), set out an (early) summary of the new regime, at paragraph 14 of Budniok:

'(a) An individual may make an application to the adjudicator for a bankruptcy order to be made against him on the ground that he is unable to pay his debts (see section 263H Insolvency Act and rule 6.38 as to the form of the application). The application must include the information set out in Schedules 2A and 2B Insolvency Rules 1986;

(b) The adjudicator has 28 days in which to decide the application (section 263K and rules 6.42 and 6.43);

(c) Before reaching a decision, the adjudicator may seek further information from the applicant in order to determine the bankruptcy application, and the 28 day period may be extended by 14 days (section 263L and rule 6.42(3));

(d) The adjudicator may also make a number of verification checks on her own initiative, including checking credit reference agencies and the electoral register and contacting the official receiver (rule 6.41);

(e) The adjudicator's decision on the bankruptcy application must be made on the basis of the information provided by the applicant in his application, any further information he has provided upon request and the adjudicator's verification checks (rule 6.42(4) and (5));

(f) The adjudicator must make a bankruptcy order (section 263K(2)) if satisfied that:

(i) the applicant's centre of main interests is in England and Wales (section 263I(1)(a) and (4) and section 263K(1)(a));

(ii) the applicant is unable to pay his debts at the date of the determination (section 263K(1)(b));

(iii) no bankruptcy petition is pending in relation to the debtor at the date of the determination (section 263K(1)(c)); and

(iv) no bankruptcy order has been made in respect of any of the debts which are the subject of the application at the date of the determination (section 263K(1)(d)).

(g) If the adjudicator is not satisfied of these matters, then she must refuse the application and give reasons (section 263K(3), section 263N(1) and rule 6.45;

(h) The applicant may ask the adjudicator to review any refusal within 14 days, but he may not seek to adduce any further information (section 263N(2) and rule 6.46);

(i) The adjudicator, on review, may either uphold the refusal or make a bankruptcy order. If the refusal is upheld, again, the reasons must be given (sections 263N(3)-(4) and rule 6.46);

(j) If the refusal is upheld on review, the applicant may apply to the court to appeal that decision within 28 days (section 263N(5) and rule 6.47).

(k) On the appeal, the court must either dismiss the application or make a bankruptcy order (rule 6.47(4)).'

For those interested in the technical provisions which introduced the new scheme, Registrar Baister in Budniok said, paragraph 13:

'The Enterprise and Regulatory Reform Act 2013 introduced a new regime governing the circumstances in which and method by which a debtor could make himself bankrupt. Section 71, together with Schedules 18 and 19, which came into force on 6 April 2016, made amendments to the Insolvency Act 1986 by:

(a) repealing sections 272 – 274A Insolvency Act 1986 (see paragraph 9(1) of Schedule 19 Enterprise and Regulatory Reform Act 2013);

(b) creating the office of adjudicator (see section 398A Insolvency Act 1986);

(c) introducing a new Chapter A1 into Part IX Insolvency Act 1986 in the form of new sections 263H – 263O (see Schedule 18 Enterprise and Regulatory Reform Act 2013); and

(d) changing the jurisdictional basis on which an individual may apply for his own bankruptcy (section 263I Insolvency Act 1986).'

[2] Any appeal must be brought within 21 days of the decision challenged, unless an extension of time from the court is obtained. See CPR r.52

As to the destination for any such appeal, section 375, subsections (2) and (3) of the Insolvency Act 1986 provide:

'(2) An appeal from a decision made in the exercise of jurisdiction for the purposes of those Parts by the county court or by an insolvency and companies court judge lies to a single judge of the High Court; and an appeal from a decision of that judge on such an appeal lies to the Court of Appeal.

(3) The county court is not, in the exercise of its jurisdiction for the purposes of those Parts, to be subject to be restrained by the order of any other court, and no appeal lies from its decision in the exercise of that jurisdiction except as provided by this section.'

See Practice Direction (Insolvency Proceedings) [2014] BCC 502 (which came into force on 25 April 2018)

See: (1) Bailey v Dargue [2009] BPIR 1; (2) Raguz v Scottish & Newcastle Ltd [2010] B.P.I.R. 945; (3) Sykes v Shillito [2017] EWHC 3588 (Ch); and (4) Vadher v Weisgard [1997] BCC 219.

For an article that addresses some issues with appealing against a bankruptcy, written by the same author, click here.

[3] Insolvency Act 1986, section 375(1) reads:

'Every court having jurisdiction for the purposes of the Parts in this Group may review, rescind or vary any order made by it in the exercise of that jurisdiction.'

Section 375 appears in 'The Second Group of Parts: Insolvency of Individuals; Bankruptcy', which consists of sections 251A to 385. So the reference to 'Parts in this Group' in section 375(1) is a reference to any court that has jurisdiction in relation to those sections. In other words, section 375(1) empowers a Court with jurisdiction to make orders under any of those provisions, to also review, rescind or vary any order it has made under any of those sections.

The provisions in the Insolvency Act 1986 on bankruptcy are contained in The Second Group of Parts, in Parts IX, X and XI (containing sections 263H to 385 inclusive), though the main part is Part IX (which contains sections 263H to 371 inclusive). Chapter 1 to Part IX is the main chapter (which contains sections 264 to 282 inclusive) and section 264 is the central provision. Subject to subsection 264(1) - which identifies valid petition categories (usually section 264(1)(a)), section 264(2) empowers '...the court to make a bankruptcy order on any such petition'

Section 375(1) therefore applies to bankruptcy order made under section 264(2).

The authors of Sealy & Milman: Annotated Guide to the Insolvency Legislation 24th Ed. - 2021, in their commentary to section 375, refer to the section as a 'general 'safety value'. There are however, constrains on the use of this apparently wide empowering provision.

See Ross v HMRC [2012] EWHC 1054; [2012] BPIR 843, a decision of Norris J, for a discussion on the section 375(1) of the Insolvency Act 1986 power, and relevance of factors going into determining the exercise of discretion.

As to the divide between when the court will: (1) annul the bankruptcy order, under section 282(1)(a); and (2) rescind the bankruptcy order, under s.375(1), reference should be made to Yang v Official Receiver [2017] EWCA Civ 1465 [2018] 2 W.L.R. 307 ('Yang'). In Yang, the Court of Appeal (Gloster LJ and Sir Patrick Elias) considered the point in particular relation to where the bankruptcy order was made on unpaid council tax liability orders. In paragraphs 48 to 59, Gloster LJ said, under the subheading '...Annulment or rescission - discussion and determination':

48 I turn to the question of whether the subsequent setting aside of the liability orders is a ground for rescission or annulment. We were told that this would be the first appellate decision squarely to address the ambit and interaction of the powers to annul and to rescind a bankruptcy, under sections 282(1)(a) and 375(1) of the IA86, in the situation where the debt upon which the BO was founded had been set aside subsequent to the BO.

49 I have already identified the two principal authorities, which at first blush adopted conflicting approaches. In Royal Bank of Scotland v Farley [1996] BPIR 638 , 640 Hoffmann LJ suggested that the subsequent setting aside of a default judgment was a ground existing at the time of the BO, so as to provide a basis for annulment:

“if it can be demonstrated by evidence subsequent to the bankruptcy order that the debt upon which the petition was founded did not exist, then it would be right to say that there was a ground existing at the time the order was made on which it should not have been made. That could be true, notwithstanding that, at the time of the order there was a default judgment in existence which had not yet been set aside.” (Emphasis supplied.)

50 By contrast, in Revenue and Customs Comrs v Cassells [2009] STC 1047, para 29, Sir Andrew Morritt C considered that the setting aside of a tax liability was not a ground existing at the time of the BO, and therefore could only be grounds for rescission, not annulment:

“[An application to annul] could not have succeeded under section 282(1)(a), because there is no doubt that the assessments under section 28C of the Taxes Management Act 1970 gave rise to legally enforceable debts. Accordingly, the [bankruptcy] order was rightly made when made.”

51 There are additional authorities supporting each approach. Hoare v Inland Revenue Comrs [2002] BPIR 986 , which preceded the Cassells case, relied upon and applied Farley's case. There, Peter Smith J suggested at paras 8–9 that:

“8. … any application to rescind or annul is necessarily retrospective in nature and requires the court, on the case of an annulment, to look at the facts and submissions placed before the court on the annulment application to see whether, had those matters taken place, or those submissions in this case been made at the hearing of the bankruptcy petition and then ask the question whether the bankruptcy order [would] have then been made.

“9. It must necessarily be retrospective, because otherwise if the matter had been presented at the time of the hearing of the petition, then there would be no material ever upon which an application to annul could have been made. All that could be done would be to follow the appeal procedure against the decision which had been made, fully argued.”

52 However, most recently, in JSC Bank of Moscow v Kekhman [2015] 1 WLR 3737 , paras 68–70, Morgan J inclined towards the view that in relation to annulment the court should consider the factual position as it stood at the time the BO was made:

“68. There will necessarily be a period of time between the date of the bankruptcy order and the date of the hearing of the annulment application. As section 282(1)(a) makes clear, the court is required to consider the grounds existing at the earlier, and not the later, point in time. Thus, if the facts change between these two dates, the court must consider the facts as they stood before the change. This does not mean that the court will leave entirely out of account events which occurred between the two dates. For example, events which occur after the bankruptcy order may throw reliable light on ‘the grounds existing at the time the [bankruptcy] order was made’. An example would be where there was a dispute about the value of an asset at that time and, following the bankruptcy order, that asset is sold in the open market in such a way as to provide reliable evidence as to the value of the asset at the date of the bankruptcy order …

“69. What sometimes happens when a court is asked to make a bankruptcy order is that the court has to make an assessment of certain possibilities. It might be said that the bankruptcy order will provide an opportunity for the trustee in bankruptcy to investigate certain matters. It might also be said that a bankruptcy order will carry with it the risk of certain adverse consequences. These matters involve an assessment of future possibilities. The court has to do its best to judge those matters as at the time the order is made. On an annulment application, it will be open to a party to lead evidence as to further facts which existed at the date of the bankruptcy order, even though those further facts were not provided to the court at the date of the order. But is it open to a party to inform the court, perhaps some considerable time later, of what actually happened in relation to the various possibilities and then to submit that because things turned out differently, that the court's initial assessment was wrong and that the order ‘ought not to have been made’? The chief registrar directed himself that, when matters are uncertain at the date of the order, but the uncertainty was resolved before the date of the hearing of a later annulment application, he should have regard to the later events. He relied on the decision in Watts v Newham London Borough Council [2009] BPIR 718 …

“70. … The chief registrar did take into account a number of matters which had occurred after the making of the bankruptcy order. He was clearly right to take account of subsequent events in so far as they provided evidence of what the facts were on 5

October 2012. However, I am less convinced that it was appropriate to entertain a submission that because a possibility which was assessed in a particular way on 5 October 2012 turned out differently from the assessment that the bankruptcy order ‘ought not to have been made’. In view of the absence of any challenge to his judgment on this ground, this matter was not argued in any detail before me … I have therefore considered whether the approach in the Watts case was correct. In the end, I have decided that it is not necessary for me to rule on that point. If it had been necessary to give such a ruling, then I would have wished to consider whether that approach goes too far and whether a case where the court's assessment in relation to future events does not prove to be accurate should be dealt with by rescission under section 375 , rather than by annulment under section 282. This question of the court's approach to the assessment of a contingency, and the relevance of later events is a difficult one, and a court asked to consider the meaning of ‘on the grounds existing at the time the order is made’ in section 282 might wish to consider whether it derives benefit from the citation of authorities in other areas of the law such as Bwllfa and Merthyr Dare Steam Collieries(1891) Ltd v Pontypridd Water Works Co [1903] AC 426 (a case which might have influenced the deputy judge in the Watts case), Stein v Blake [1996] AC 243 , 252 and Golden Strait Corpn v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2007] 2 AC 353 or whether such authorities should be distinguished.” (Emphasis supplied.)

(Notwithstanding those remarks by Morgan J, none of the parties suggested that any other authorities outside the insolvency context assisted in construing the specific wording in section 282 of the IA86.)

53 Whilst it does not directly relate to the construction of section 282 of the IA86 , the general ambit of the power to rescind might be thought to inform the scope of the power to annul—in particular, if it were thought that these powers should dovetail rather than overlap. The salient point is that it is “well established” that section 375 of the IA86 requires “new material and/or a material change of circumstances”: Crammer v West Bromwich Building Society [2012] BPIR 963 , paras 7–8. However, a change in circumstances in this sense will include where facts which did exist at the time a BO was made have subsequently come to light: Papanicola (Trustee in Bankruptcy for Mak) v Humphreys [2005] 2 All ER 418.

54 Finally, in considering the interaction between the powers to rescind and to annul a bankruptcy, it is also appropriate to understand why the difference might matter to the bankrupt. In essence, rescission terminates the bankruptcy whereas annulment treats the BO as having never been made. There are a variety of reasons why this might be significant: see Muir Hunter on Personal Insolvency looseleaf ed, vol 1, paras 3-600 to 3–603 and 3–2614 (references as at 29 March 2017) (“ Muir Hunter “). Two reasons might be thought to be of general significance. First, the Insolvency Rules require the bankruptcy details to be removed from the individual insolvency register in the event of annulment, but not rescission. Thus a credit agency may not become aware of the making of a rescission order, which would have implications in relation to the ex-bankrupt's credit rating. Second, certain contractual terms may be triggered when a BO has been made but rescinded, whereas the terms will not be triggered if the BO has been annulled (this was, for example, the case in Hoare v Inland Revenue Comrs [2002] BPIR 986 ).

55 In my judgment, the only sensible interpretation of section 282(1)(a) of the IA86 is that contended for by the local authority: namely that regulation 49(1) of the CTR deems the liability orders to constitute a legally enforceable debt, regardless of the underlying factual position relating to the relevant property, unless and until the liability order is set aside under the specific statutory procedure laid down for doing so. Dictates of certainty and expediency require that a bankruptcy court should not go behind the liability orders, except in the event of fraud or some miscarriage of justice. At the date that the BO was made, the liability orders remained in place and had not been set aside; the effect of regulation 49(1) of the CTR was therefore statutorily to deem them as constituting a legally enforceable debt from the time they were made until the time they were set aside. The fact that the liability orders were subsequently set aside was not a ground “existing at the time the [BO] was made”, as required by section 282(1)(a) of the IA86. It was only later, in August 2012, when the liability orders were in fact set aside, that the debt ceased to exist. Thus, even if all the underlying facts in relation to the property had been known at the time that the BO was made, the court would none the less have been entitled to make a bankruptcy order. (Of course, whether it would have done so, as opposed to adjourning the petition to enable the applicant to have obtained an order setting aside the liability orders, is irrelevant.)

56 The logic of Sir Andrew Morritt C in Revenue and Customs Comrs v Cassells [2009] STC 1047

and of Morgan J in JSC Bank of Moscow v Kekhman [2015] 1 WLR 3737 appears to me to be compelling and to be preferred to that of Peter Smith J in Hoare v Inland Revenue Comrs [2002] BPIR 986. Nor do I consider that this court is bound by the obiter suggestion of Hoffmann LJ in Royal Bank of Scotland v Farley [1996] BPIR 636 , 640 which was, in any event, dealing with the position in relation to a default judgment, as opposed to a debt imposed by a specific statutory provision. The fact is that the words “at the time the order was made” in section 282(1)(a) must have some significance and if read as widely as Hoffmann LJ's dictum might seem to suggest, such words would seem to have no significance at all.

57 The contrast in section 282(1) between sub-paragraphs (a) and (b) is perhaps of some relevance. The latter envisages something happening i e the payment of debts, since the making of the order. The fact that the order was properly made because the debts could not properly have been paid at the time is irrelevant. By contrast, the language in (a) is different. It envisages that if all material facts existing at the time the order was made had been known to the court, the order would not have been made. In this case, as I have said, it would have been made.

58 My conclusion is supported by various authorities: see Muir Hunter , vol 1, para 3-310.1 (references as at 29 March 2017). The finality of liability orders is a point also made by Mummery LJ in Bolsover District Council v Dennis Rye Ltd [2009] 4 All ER 1140 , at para 5:

“liability orders are orders of the court like ordinary civil judgments. If a winding up petition is based on such orders the court will seldom look into them, or go behind them , in the absence of fraud, or in the absence of jurisdiction in the court that made the orders, or ‘some other truly compelling circumstance’.” (Emphasis supplied.)

59 In the circumstances, the question of discretion does not arise since the power to annul under section 282(1)(a) was not engaged.'

[4] The Court has no inherent power to annul a bankruptcy order, outside of the statutory power bestowed upon the Court by s.282(1) of the Insolvency Act 1986. In Re Debtor (No.68 of 1992) (also known as Royal Bank of Scotland Plc v Debtor) [1996] BPIR 478 ('Re Debtor 68 of 1992'), Harman J held that there was no jurisdiction, outside s.282 of the Insolvency Act 1986, to annul a bankruptcy order.

In Re Debtor 68 of 1992, Harman J hearing an appeal, quoted, at paragraph 1, from the first instance judge's judgment as to the basis upon which the first instance judge annulled the relevant bankruptcy order:

'I take the view that it is inherently unjust for bankruptcy proceedings to be hanging over someone's head. At the present time, there is in existance no judgment against [the bankrupt]. It may be some considerable time before the appeal against the order setting aside the High Court judgment is finally concluded and in those circumstances I will use my discretion to annul the bankruptcy order'

As to this Harman J said, at paragraphs 2 and 3:

'With the greatest respect to the [first instance judge], there is no such general discretion as he seems to have assumed. The Insolvency Act 1986 provides the whole statutory basis for personal bankruptcy proceedings. Section 282 provides the only basis upon which the court may exercise certain power. The section reads:

'(1) the court may annul a bankruptcy order if it at any time appears to the court -

(a) that, on the grounds existing at the time the order was made, the order ought not to have been made, or...'

and I paraphrase, (b) that since the making of the order the debts have been paid.

There is no suggestion in this case that s 282(1)(b) is relevant or applicable. The only power to annul, therefore, must have been that on the grounds existing at the time the order was made the order ought not to have been made'

[5] In JSC Bank of Moscow v Kekhman [2015] 1 WLR 3737, Morgan J gave a non-exhaustive summary of the effects of a bankruptcy order. Under the heading 'The effect of a bankruptcy order', Morgan J said, at paragraphs 77 to 83:

'77. It is relevant in this case to consider the general effect of a bankruptcy order. What follows is a brief summary only of the general position and does not deal with the many qualifications of, and exceptions to, the general position if they are not of particular relevance in the present case.

78. A bankruptcy order may be made on a debtor's or a creditor's petition: section 264(1)(a)(b)(2) of the 1986 Act. The bankruptcy of the debtor commences with the day on which the order is made and continues until the debtor is discharged from bankruptcy: section 278. The bankrupt is discharged from bankruptcy at the end of the period of one year beginning with the date on which the bankruptcy commenced: section 279. Where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts ( section 281(1) ) but he is not released from a bankruptcy debt which he incurred in respect of any fraud or any fraudulent breach of trust to which he was a party: section 281(3). “Bankruptcy debt” is defined by section 382. A court may annul a bankruptcy order: section 282.

79. The bankrupt's estate comprises all property belonging to or vested in the bankrupt at the commencement of the bankruptcy: section 283(1). After the making of a bankruptcy order, no creditor of the bankrupt, in respect of a debt provable in the bankruptcy, has any remedy against the property or person of the bankrupt in respect of that debt nor may such a creditor commence any action or other legal proceedings against the bankrupt, except with the leave of the court: section 285.

80. The 1986 Act provides for the appointment of a trustee in bankruptcy. The function of the trustee is to get in, realise and distribute the bankrupt's estate: section 305. The bankrupt's estate vests in the trustee on his appointment: section 306. The trustee may claim for the bankrupt's estate any property which has been acquired by, or has devolved upon, the bankrupt since the commencement of the bankruptcy: section 307. Section 322 provides that the proof of a bankruptcy debt is to take place in accordance with the Insolvency Rules 1986. Whenever the trustee has sufficient funds in hand of the purpose, he shall declare and distribute dividends among the creditors in respect of the bankruptcy debts which they have respectively proved: section 324(1).

81. The bankrupt is obliged to co-operate with the trustee, in particular, by providing relevant information as to his affairs: section 333. Every bankruptcy is under the general control of the court: section 363(1).

82. As explained above, the bankruptcy legislation refers to a bankrupt's creditors. The relevant creditors can be anywhere in the world. They can include creditors whose debts are governed by foreign law as well as debts governed by English law. Such creditors can prove in the bankruptcy and, if proving, are eligible to receive any dividend. Similarly, the references in the legislation to the bankrupt's debts include all such debts. Further, the references to the bankrupt's property extends to his property anywhere in the world.

83. In theory, therefore, a bankruptcy order has worldwide effect. However, there can be a disparity between theory and practice. For example, if a bankruptcy order is made in relation to a Russian citizen, and if the Russian courts would not recognise the bankruptcy order or the title of the trustee in relation to the bankrupt's property in Russia, then in practice the order may have limited, or no, effect in relation to Russian creditors and no effect in relation to assets in Russia. Those creditors will be able to sue the bankrupt in the Russian courts in relation to his debts, to obtain judgment for the full amount of the debt and to proceed to execute any such judgment in relation to the bankrupt's assets in Russia.'

[6] 'reversed' is used as a convenient general umbrella term.

[7] 'Impugning Procedures' is not a legal term or common phrase. It is just a convenient umbrella term, used for the purposes of this article, to put the three different routes to having the bankruptcy order, under one label.

[8] Subject to timing for an appeal - i.e an appeal must (unless an extension of time is granted) be lodged within 21 days of the date of the decision (note that is from the date of the decision not the date of the order).

Any party wishing to appeal a decision of the lower court (known as the appellant) must file an Appellant’s Notice on Form N161 within the time limit set out in CPR 52 (21 days) or as varied in any order whether or not the judge of the lower court has granted permission to appeal, and must pay the appropriate fee. There are sometimes different time limits for statutory appeals and care should be taken to ensure that the party seeking to file an Appellants Notice complies with the relevant prescribed time limit. The time to file the N161 is counted from the date the decision of the lower court was made, not from the date that the formal order recording the decision was issued (CPR 52.12 (2)(b)) unless that time limit is varied by any order of the court.

Any application for an extension of time to issue the application for permission to appeal should be made in the N161. An explanation of why an extension of time should be granted must be provided.

An application for permission to appeal should usually first be made to the judge who made the decision against which the appellant wants to appeal. This should be made either at the conclusion of the hearing at which the decision is made or when a judgment is handed down. If the judgment is handed down on a non-attendance basis, any application for permission to appeal should be made or notified in writing in advance of the time at which the judgment or order is to be handed down. If the parties require a hearing of the application, the court should be requested to adjourn the hearing of the application for permission to appeal, for written submissions or a hearing, and to extend the time for filing an N161: McDonald v Rose [2019] EWCA Civ 4 at [21]. For further guidance see paragraphs 12.84 to 12.96.

If the lower court refuses permission to appeal, or permission is not applied for at the conclusion of the hearing or when judgment is handed down or at any adjourned hearing, the application for permission to appeal must then be made to the appeal court, by filing the N161, and paying the appropriate fee at the appeal court within the time permitted.'

Limiting this to personal insolvency, see also:

(1) Section 375 of the Insolvency Act 1986 is entitled 'Appeals etc. from courts exercising insolvency jurisdiction' and subsections 375(2) and (3) provide:

'(2) An appeal from a decision made in the exercise of jurisdiction for the purposes of those Parts by the county court or by an insolvency and companies court judge lies to a single judge of the High Court; and an appeal from a decision of that judge on such an appeal lies to the Court of Appeal.

(3) The county court is not, in the exercise of its jurisdiction for the purposes of those Parts, to be subject to be restrained by the order of any other court, and no appeal lies from its decision in the exercise of that jurisdiction except as provided by this section.'

Section 375 is within The Second Group of Parts: Insolvency of Individuals; Bankruptcy - Parts 7A to 11.

(2) In the Insolvency Rules 2016, Part 12, there is Chapter 10, entitled 'Appeals', from r.12.58 to r.12.62. In particular, r.12.58 is entitled 'Application of Chapter' and provides:

'CPR Part 52 (appeals) applies to appeals under this Chapter as varied by any applicable Practice Direction.'

R.12.60 is entitled 'Appeals in bankruptcy by the Secretary of State' and is unlikely to relevant very often; r. 12.62 is entitled 'Appeals against decisions of the Secretary of State or official receiver';

R.12.61 is entitled 'Procedure on appeal' and provides:

'(1) An appeal against a decision at first instance may be brought only with the permission of the court which made the decision or of the court that has jurisdiction to hear the appeal.

(2) An appellant must file an appellant’s notice within 21 days after the date of the decision of the court that the appellant wishes to appeal.'

(3) Practice Direction: Insolvency Proceedings [2020] BCC 698, Part Four/paragraph 17 is entitled 'Appeals'. Paragraphs 17.1 and 17.2 relate to appeals in personal insolvency matters (paragraph 17.3 is 'appeals against decisions of adjudicators'):

'17. Appeals

17.1. CPR Pt 52 and its attendant practice directions apply to insolvency appeals unless dis-applied or inconsistent with the Act or the Insolvency Rules. This IPD provides greater detail on the routes of appeal as applied to insolvency proceedings under the Act, the Insolvency Rules and CPR Pt 52.

17.2. Appeals in personal insolvency matters

(1) Paragraph 17.2 applies to all applications for permission to appeal and appeals from decisions made in personal insolvency matters, save those that arise from s.263N of the Act relating to bankruptcy applications to an adjudicator.

(2) An application for permission to appeal relating to a decision made in a personal insolvency matter by a district judge lies to a High Court judge.

(3) An application for permission to appeal relating to a decision made in a personal insolvency matter by a district judge sitting in a district registry, a Circuit Judge, or an ICC judge lies to a High Court judge, but not to a deputy.

(4) An appeal from a decision in a personal insolvency matter made by a district judge lies to a High Court judge.

(5) An appeal from a decision in a personal insolvency matter made by a district judge sitting in a district registry, a recorder, a Circuit Judge, or an ICC judge lies to a High Court judge, but not to a deputy. Supervising Judges for the Business and Property Courts may, in circumstances they consider to be appropriate, allow for an appeal from a decision in a personal insolvency matter made by a district judge sitting in a district registry to be handled by a Circuit Judge acting as a judge of the High Court under s.9(1) of the Senior Courts Act 1981.'

Jumping to paragraph 18:

'18. Permission to appeal

18.1. A first appeal is subject to the permission requirements of CPR Pt 52 r.3.

18.2. An appeal from a decision of a High Court judge, or from a decision of an ICC judge which was itself made on appeal, requires the permission of the Court of Appeal.

19. Filing appeals

19.1. An application for permission to appeal or an appeal from a decision of an ICC judge which lies to a High Court judge must be filed at the Royal Courts of Justice.

19.2. An application for permission to appeal or an appeal from a decision of a district judge sitting in a district registry must be filed in that district registry.

19.3. An application for permission to appeal or an appeal from a decision of a district judge must be filed in its corresponding appeal centre, as identified in the table in Sch.10 of the Insolvency Rules.'

[11a] Clarke LJ in Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 said, at paragraph 22:

By CPR rule 52.7, unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of execution of the orders of the lower court. It follows that the court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?

[11b] Insolvency (England and Wales) Rules 2016 contains Part 12, entitled 'Court Procedure and Practice', which in turn contains r.12.1, entitled 'Court rules and practice to apply'. Rule 12.1(1) provides:

'The provisions of the CPR (including any related Practice Directions) apply for the purposes of proceedings under Parts A1 to 11 of the Act with any necessary modifications, except so far as disapplied by or inconsistent with these Rules.'

Parts A1 to 11 of the 'Act' - meanings: (a) the Insolvency Act 1986; and (b) The First and Second Group of Parts of Insolvency Act 1986, which spans the main provisions on corporate and personal (bankruptcy) insolvency.

In Hayes v Hayes [2014] EWHC 2694, Nugee J confirmed that a specific provision in the Insolvency Rules will trump a CPR practice, where the later is inconsistent with the former.

[12] CPR r.2.2 is entitled 'The glossary' and provides:

'(1) The glossary at the end of these Rules is a guide to the meaning of certain legal expressions used in the Rules, but is not to be taken as giving those expressions any meaning in the Rules which they do not have in the law generally.

(2) Subject to paragraph (3), words in these Rules which are included in the glossary are followed by(GL).

(3) The words “counterclaim”, “damages”, “practice form” and “service”, which appear frequently in the Rules, are included in the glossary but are not followed by “(GL)”.'

The Glossary is printed below in Section E, volume 2 of the White Book 2023. In the White Book 2023, Section 12 (CPR: Application, Amendments and Interpretation), para 12-42, the commentary provides:

'In r.2.2 it is stated that the meanings given for the expressions listed in the Glossary are meant as guides only and do not give those expressions “any meaning in the Rules which they do not have in law generally”. The Civil Procedure Act 1997 s.1(3) (as amended) states that the rule committee when making rules must “try to make rules which are both simple and simply expressed”. The Glossary may be seen as an attempt to discharge that duty.'

[13a] Note, CPR r.3.1(1) reads 'The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.'

[14] Formerly, this rule (in exactly the same wording) used to appear as CPR r.52.7.

[15] The Practice Direction (Ch D: Insolvency Proceedings) [2020] BCC 698; [2020] BPIR 1211 confirms the position. In Part Four, headed 'Appeals', under subheading 'Appeals', paragraph 17.1 provides:

'CPR Pt 52 and its attendant practice directions apply to insolvency appeals unless dis-applied or inconsistent with the Act or the Insolvency Rules.'

For completeness, but off point, the rest of Part Four reads as follows, from paragraphs 17 to 19:

'17.1...This IPD provides greater detail on the routes of appeal as applied to insolvency proceedings under the Act, the Insolvency Rules and CPR Pt 52.

17.2. Appeals in personal insolvency matters

(1) Paragraph 17.2 applies to all applications for permission to appeal and appeals from decisions made in personal insolvency matters, save those that arise from s.263N of the Act relating to bankruptcy applications to an adjudicator.

(2) An application for permission to appeal relating to a decision made in a personal insolvency matter by a district judge lies to a High Court judge.

(3) An application for permission to appeal relating to a decision made in a personal insolvency matter by a district judge sitting in a district registry, a Circuit Judge, or an ICC judge lies to a High Court judge, but not to a deputy.

(4) An appeal from a decision in a personal insolvency matter made by a district judge lies to a High Court judge.

(5) An appeal from a decision in a personal insolvency matter made by a district judge sitting in a district registry, a recorder, a Circuit Judge, or an ICC judge lies to a High Court judge, but not to a deputy. Supervising Judges for the Business and Property Courts may, in circumstances they consider to be appropriate, allow for an appeal from a decision in a personal insolvency matter made by a district judge sitting in a district registry to be handled by a Circuit Judge acting as a judge of the High Court under s.9(1) of the Senior Courts Act 1981.

17.3. Appeals from Decisions of Adjudicators

(1) An application under s.263N(5) of the Act appealing the decision of an adjudicator to refuse to make a bankruptcy order is made to the court, in accordance with the provisions in r.10.48.

(2) No prior application for permission to appeal is required.

(3) An application under s.263N(5) of the Act will be treated as the first hearing of the matter.

(4) It is the responsibility of the applicant to obtain from the adjudicator a copy (digital or otherwise) of the original application reviewed by the adjudicator (including the adjudicator’s notice of refusal to make a bankruptcy order and notice confirming that refusal) and a record of (a) the verification checks undertaken under r.10.38 by the adjudicator and (b) any additional *718 information provided under r.10.39(3) and available to the adjudicator at the date when the adjudicator refused to make a bankruptcy order.

(5) Prior to making a final decision the court may:

(a) direct that notice of the application be given to any interested person;

(b) give permission to any interested person and the petitioner to file evidence;

(c) make any case management order to assist in determining whether to dismiss the application or make a bankruptcy order.

17.4. Appeals in corporate insolvency matters

(1) Routes of appeal for appeals from decisions in corporate insolvency matters under Pts 1 to 7 of the Act (and the corresponding Insolvency Rules ) are specified in r.12.59.

(2) An application for permission to appeal relating to a decision made in a corporate insolvency matter by a district judge lies to a High Court judge or an ICC judge but not to a deputy ICC judge. Whether it lies to a High Court judge or an ICC judge depends on the location from which the decision being appealed originates, in conformity with Sch.10 of the Insolvency Rules.

(3) An application for permission to appeal relating to a decision made in a corporate insolvency matter by a district judge sitting in a district registry or a Circuit Judge lies to a High Court judge, but not to a deputy.

(4) An application for permission to appeal relating to a decision made at first instance in a corporate insolvency matter by an ICC judge lies to a High Court judge, but not to a deputy.

(5) An application for permission to appeal relating to a decision made by an ICC judge on appeal from a district judge in a corporate insolvency matter lies to the Civil Division of the Court of Appeal.

(6) An appeal from a decision in a corporate insolvency matter made by a district judge lies to a High Court judge or to an ICC judge, depending on the location from which the decision being appealed originates, in accordance with Sch.10 of the Insolvency Rules.

(7) An appeal from a decision in a corporate insolvency matter made by a district judge sitting in a district registry lies to a High Court judge but not to a deputy. Supervising Judges for the Business and Property Courts may, in circumstances they consider to be appropriate, allow for an appeal from a decision in a corporate insolvency matter made by a district judge sitting in a district registry to be handled by a Circuit Judge acting as a judge of the High Court under s.9(1) of the Senior Courts Act 1981.

(8) An appeal from a decision in a corporate insolvency matter made by a recorder or a Circuit Judge lies to a High Court judge, but not to a deputy.

(9) An appeal from a decision in a corporate insolvency matter made at first instance by an ICC judge lies to a High Court judge, but not to a deputy.

(10) An appeal from a decision in a corporate insolvency matter made by an ICC judge on appeal from a district judge in a corporate insolvency matter lies to the Civil Division of the Court of Appeal.

18. Permission to appeal

18.1. A first appeal is subject to the permission requirements of CPR Pt 52 r.3.

18.2. An appeal from a decision of a High Court judge, or from a decision of an ICC judge which was itself made on appeal, requires the permission of the Court of Appeal.

19. Filing appeals

19.1. An application for permission to appeal or an appeal from a decision of an ICC judge which lies to a High Court judge must be filed at the Royal Courts of Justice.

19.2. An application for permission to appeal or an appeal from a decision of a district judge sitting in a district registry must be filed in that district registry.

19.3. An application for permission to appeal or an appeal from a decision of a district judge must be filed in its corresponding appeal centre, as identified in the table in Sch.10 of the Insolvency Rules.'

[16a] 2016 Rules, r.10.135 is entitled 'Power of court to stay proceedings' and r.10.135 reads (in its entirety):

'(1) The court may, in advance of the hearing, make an order staying any proceedings which it thinks ought, in the circumstances of the application, to be stayed.

(2) Except in relation to an application for an order staying all or any part of the proceedings in the bankruptcy, application for an order under this rule may be made without notice to any other party.

(3) Where an application is made under this rule for an order staying all or any part of the proceedings in the bankruptcy, the applicant must deliver copies of the application to the official receiver and the trustee, if other than the official receiver, in sufficient time to enable them to be present at the hearing and make representations.

(4) Where the court makes an order under this rule staying all or any part of the proceedings in the bankruptcy, the rules in this Chapter nevertheless continue to apply to any application for, or other matters in connection with, the annulment of the bankruptcy order.

(5) If the court makes an order under this rule, it must deliver copies of the order to the applicant, the official receiver and the trustee (if different).'

[16b] As to the effect of a stay on a bankruptcy order, HHJ Klein sitting as a Judge of the High Court in Onabajo v Kelmscott Services SARL [2023] EWHC 1414 (Ch), stated, at paragraph 14:

'Neither party took me to any authority which clearly establishes that the effect of a temporary stay of a bankruptcy order is to effectively suspend its operation, and allow a debtor to continue to act as if there was bankruptcy order or petition in the meantime, as is the position, so far as I understand it, in the case of an interim stay of a winding up order. Nevertheless, that the effect of a stay of a bankruptcy order is to at least bring a temporary halt to the conduct of the bankruptcy proceedings is clear from what David Richards J said in [Foster 2011].'

[17] A few points here:

(1) It is not always the case that the Official Receiver will be the trustee in bankruptcy for the entirety of the bankruptcy;

(2) Formerly, there was a gap between: (1) the bankruptcy order; and (2) a trustee in bankruptcy being appointed. During this time, the Official Receiver was a 'receiver' and 'manager' over the bankrupt estate, until a trustee in bankruptcy was appointed (whether a private insolvency practitioner or the official receiver (undertaking the different role)). See Section 287(1) of the Insolvency Act 1986 and Dadourian Group International Limited v Simms [2008] EWHC 723 (ch).

However, now Parliament has intervened and changed the law in this area. By section 133 of the SBEEA 2015, there is now in the Insolvency Act 1986, section 291A, which is entitled 'First trustee in bankruptcy'. Section 291A(1) and (2) read:

'(1) On the making of a bankruptcy order the official receiver becomes trustee of the bankrupt’s estate, unless the court appoints another person under subsection (2).

(2) If when the order is made there is a supervisor of a voluntary arrangement approved in relation to the bankrupt under Part 8, the court may on making the order appoint the supervisor of the arrangement as the trustee.'

So unless the bankrupt was in an IVA, and the court orders the supervisor of the IVA, to be the trustee in bankruptcy, section 291A(1) is engaged and makes the Official Receiver the bankrupt's trustee in bankruptcy, immediately upon the bankruptcy order being made.

But subsequent to that, a private insolvency practitioner may take over the role of trustee in bankruptcy, from the Official Receiver.

[18] It is interesting to look at the CPR rules and the wording used therein. There are three to look at:

(1) CPR r.83.7(1) and (4);

(2) CPR r.40.8A; and

(3) CPR r.3.1(2)(f).

CPR r.83.7(1) and (4)

CPR r.83.7 is entitled 'Writs of control and warrants—power to stay execution or grant other relief' and r.83.7(1) provides:

'At the time that a judgment or order for payment of money is made or granted, or at any time thereafter, the debtor or other party liable to execution of a writ of control or a warrant may apply to the court for a stay of execution.

...

(4) If the court is satisfied that-

(a) there are special circumstances which render it inexpedient to enforce the judgment or order; or

(b) the applicant is unable from any reason to pay the money,

then, notwithstanding anything in paragraph (5) or (6), the court may by order stay the execution of the judgment or order, either absolutely or for such period and subject to such conditions as the court thinks fit.' [bold added]

CPR r.40.8A

CPR r.40.8A is entitled 'Stay of execution and other relief' and reads:

'Without prejudice to rule 83.7(1), a party against whom a judgment has been given or an order made may apply to the court for-

(a) a stay of execution of the judgment or order; or

(b) other relief,

on the ground of matters which have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms, as it thinks just.' [bold added]

CPR r.3.1(2)(f)

CPR r.3.1 is entitled 'The court’s general powers of management' and so far as is relevant, provides:

'(1)The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(2) Except where these Rules provide otherwise, the court may-

...

(f) stay (GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;' [bold added]

[19] In Re Goremsandu [2019] EWHC 2397 (Ch)('Goremsandu'), Fancourt J said, paragraph 8, of the placing of such restrictions:

'...the placing of restrictions on the title to properties is a basic step that is taken in the case of any bankrupt who has identifiable property...' 

In relation to the bankruptcy in Goremsandu, Fancourt J said, at paragraph 8 '...there is nothing as such which is prejudicial to [the bankrupt's] interests in such a restriction being placed.' and then declined to '...make any order that those restrictions should be removed.' From this, it seems that Fancourt J considered that he had the power to order that any such restrictions placed on the bankrupt's titles, be removed, but he was refusing because the merits were not there ((a) there was no prejudice; and separately, (b) the bankrupt was impermissibly attempting to obtain, by an alternative route, something implicitly refused already on a different application - see paragraph 7 of Goremsandu)

[20] In Howell v Hughes [2019] EWHC 1559 (Ch); [2019] BPIR 1211 ('Howell 2019'), Fancourt J said, at paragraph 17:

'The 2016 Insolvency Rules, rules 10.32 and 10.45, do in fact provide for the possibility of a stay on notification of the bankruptcy to the Land Registry or on publication of the bankruptcy in the Gazette or elsewhere. In fact, in this case, the bankruptcy order has already been entered in the register of individual insolvency, though that is a step that can be reversed if appropriate to do so.'

Note:

(1) r.10.32 applies to bankruptcy orders made by a court on a creditors bankruptcy petition; r.10.45 applies to bankruptcy orders made by a bankruptcy adjudicator on a debtor's bankruptcy petition;

(2) the wording of r.10.32 talks of the Court's power to suspend (rather than, strictly speaking, 'stay') these activities (though whether that 'crowds out' the Court's natural power to stay aspects of a bankruptcy process, is debatable). r.10.32(5) provides:

'The court may, on the application of the bankrupt or a creditor, order the official receiver to suspend action under paragraph (3) and rule 11.16, pending a further order of the court.'

Later, on the facts in Howell 2019, Fancourt J said, paragraphs 28 to 32:

'I must then consider whether or not it is appropriate to exercise the discretion given by rule 10.32(5) to order that there be no notification of the bankruptcy order to the Land Registry or publication in the Gazette. A more limited stay of this kind does not, of course, prevent the Official Receiver or a trustee from seeking to secure the assets of the estate, but it does nothing to protect those who may deal with the [bankrupt] in the interim period and it does not assist the [bankrupt] in relation to the continuation of the County Court proceedings.

The benefit for the [bankrupt] is that it may remove the risk of harm to his interests in his continuing work, whatever exactly that is, but an order staying publication will not prevent the Official Receiver or a trustee from making enquiries with those with whom the [bankrupt] has done business, with a view to identifying sums due from them to the [bankrupt]. It would be wrong to make any order that fettered the Official Receiver's ability to protect the assets of the estate in that way. The Official Receiver can and should do that. So the harm that the [bankrupt] complains about will be likely to be suffered in any event.

I consider that the balance comes down in favour of refusing to exercise the power in rule 10.32. There is no persuasive evidence that permanent harm will be done to the [bankrupt's] business interests, either reputationally or from loss of particular clients, and such harm as there is may well result in any event, for the reasons I have just given.

There is no evidence that money that has already been earned or is contingently payable to the [bankrupt] in connection with the agency deals referred to in his exhibit will be lost, and the evidence of damage to future business is no more than assertion on his part without any detail or proper explanation to support it. On the other hand, there is inevitably a real risk of prejudice to others dealing with the [bankrupt] in what may be a prolonged period of time pending determination of his appeals and his application to annul or rescind. It is clear that the [bankrupt] intends to continue with his business plans.

I can, however, make specific provision that will protect the [bankrupt's] legitimate interests in the County Court proceedings and consider that I should do so. It would be wrong to allow those proceedings to fall by inaction prior to any informed decision on whether they should be continued for the benefit of the estate of the [bankrupt] or for the [bankrupt's] benefit in the event of an annulment or rescission of the bankruptcy order.'

[21] In Muir Hunter on Personal Insolvency (2024), the learned authors state, as commentary to Insolvency (England and Wales) Rules 2016, r.10.135:

'For considerations applying analogously to the court’s discretionary jurisdiction in relation to staying proceedings pending appeal, see the commentary to IA s.375.' (Muir Hunter on Personal Insolvency, paragraph 7A-268)

[22] In Re Goremsandu [2019] EWHC 2397 (Ch), Fancourt J dismissed an application for an injunction against her TIBs, which Fancourt J characterised (paragraphs 6 - 7) as:

(1) alternative route to seeking what the bankrupt had already applied for, a stay of the bankruptcy order, and which (the application for a stay) had been adjourned to a future date. Fancourt J characterised the adjournment as containing an implicitly decision not to make an immediate stay order.

(2) impermissible, given the adjournment/refusal of an immediate stay, on the earlier application. It was the bankrupt '...seeking to revive a matter that was implicitly decided against her...' at the earlier hearing

[23] The Foster 2011 approach had been picked up/adopted in an earlier stage in the litigation in Onabajo v Kelmscott Services SARL [2023] EWHC 1414 (Ch), when Trower J was dealing with it.

In Onabajo, HHJ Klein, sitting as a Judge of the High Court, was considering an application for an order setting aside a decision of Trower J on paper, refusing to impose a stay on a bankruptcy order. In his judgment, HHJ Klein referred to the order made by Trower J, and the fact that, on the face of the order, Trower J had states his reasons for refusing the stay order sought. HHJ Klein said:

(1) in relation to the extract from Foster 2011, that '...this is a point picked up by Trower J in his reasons...' (paragraph 12);

(2) at paragraph 2 (the 'Judge' in the quote below being Trower J):

'The Judge explained the reasons for his decision briefly on the face of his order, pointing out that:

"The general rule…is that only the rarest kind of circumstances can justify staying a bankruptcy order pending appeal [and that] the usual rule is justified because there is a need to secure the assets to the estate, to identify the creditors and to obtain information, in respect of which, if the appeal is unsuccessful, there may well in the meantime have been dealings which would be to the disadvantage of creditors generally....'

For completeness, HHJ Klein said of the grounds of the appeal:

'There is nothing in the grounds of the appeal which indicates why the usual order should not apply in the present case…' (paragraph 2)

[24] As Fancourt J interpreted it as being - see paragraph 2 of Howell v Hughes [2019] EWHC 1559 (Ch); [2019] BPIR 1211

[25] In Howell v Hughes [2019] EWHC 1559 (Ch); [2019] BPIR 1211, Fancourt J said, at paragraph 3 that the only issues actually listed for determination on 5.4.19 were '...the application for a stay and, ancillary to it, the question of non-disclosure of the petition that the [bankrupt] seeks to renew.' (paragraph 3)

[26] In Howell v Hughes [2019] EWHC 1559 (Ch); [2019] BPIR 1211, Fancourt J said, at paragraphs 7 and 8:

'The valuable commercial contracts are not further explained in the [bankrupt's] tenth witness statement in support of his application except as being a potential loss of valuable instructions from clients and by reference to eight pages of the exhibit to his statement, which he describes as a small selection of instructions from clients that are in immediate jeopardy should the unjust order come to their knowledge. One of those pages is an email from an estate agent on 7 March this year saying, "I have the following enquiry, if you can assist." It appears to relate to two potential investors in real property for whom the [bankrupt] was to arrange access. The other pages in the eight pages are emails between 11 May 2018 and 16 October 2018 relating to other agency work, some of which indicate that a commission would be payable to the [bankrupt] on a completed transaction in return for his assistance or some facilitation of the transaction.

It therefore appears, although there is no direct evidence, that the [bankrupt] carries on work as a kind of intermediary or sub-agent, putting investors in contact with investment opportunities and hoping to earn a commission that way. There is no evidence as to which, if any, of the matters referred to in the emails are still live or in what circumstances, if at all, they may result in money being paid to the [bankrupt].'

[27] For completeness, in Howell v Hughes [2019] EWHC 1559 (Ch); [2019] BPIR 1211, Fancourt J said, at paragraph 19:

'19....First, the prospects of success on appeal or in seeking to annul or rescind the bankruptcy order do not appear to be strong so as to amount to a significant factor in the exercise of my discretion. I consider the merits of the proposed appeals only for this purpose. What I say will not bind the Judge who in due course decides whether to give permission to appeals.

20. There may be a realistic argument on the question of whether the court's order of 20 December 2018 made the petitioning creditors' debt a secured debt or alternatively an offer to provide security such that the debt could no longer be relied upon or that the petition should be dismissed. However, by March 2019, the supporting creditor had appeared on the scene and had given notice of its own £42,000 debt or thereabouts and it was by then apparent that the expected inheritance would probably fall short of the petitioning creditors' debt by about £10,000. For both those reasons, the prospect of the inheritance could not at that stage secure the petition debt. It is appropriate to note that the applicant disputes the supporting creditor's debt on the grounds of his cross-claim, which is the subject matter of the County Court proceedings.

21. As to whether no reasonable creditor would have refused the offer, if there was one, in March 2019, I have real doubts that there is any realistic argument there if the first ground of the appeal does not succeed.

22. The argument based on breach of the orders of Birss J and Barling J appears to me to be wrong in principle. The order bound the petitioning creditors. The supporting creditor (in the form of her litigation friend and deputy) knew about the petition before those orders were made and he also knew about it as a partner in the firm of lawyers acting for the petitioning creditors. Neither the petitioning creditors themselves nor anyone acting on their behalf with their authority have breached the order. In any event, the order made (the bankruptcy order) was solely on the basis of the petitioning creditors' debt, not the supporting creditor's, and the petitioning creditors were entitled to change their mind and seek a bankruptcy order for any reason.'

[28a] For completeness, paragraphs 18 to 20 from Onabajo v Kelmscott Services SARL [2023] EWHC 1414 (Ch), in full, read as follows:

'There is a real risk of injustice to the [bankrupt's] creditors if the bankruptcy order is stayed. The [bankrupt] does not suggest that he does not have creditors or that he is not insolvent. Rather, interpreting his grounds of appeal most favourably to him, as Trower J apparently did, his appeal and this application are based on what he contends are procedural errors and errors of discretion in the bankruptcy petition proceedings. The real risk of injustice to the [bankrupt's] creditors if the bankruptcy order is stayed - a weighty factor against a stay - arises because, in this case, at the very least the Official Receiver or any trustee in bankruptcy would be unable to take any steps to protect the interests of the [bankrupt's] creditors, in circumstances where permission to appeal may never be given. The [bankrupt] has argued, broadly, that he is not the sort of person to hide assets, and, having considered the very moderate way in which he has made his submissions today, I am prepared to proceed on that basis. Nevertheless, that argument, given what weight it can be given, does not address the broader disadvantage to creditors of a stay; namely that the [bankrupt] would continue to be able to deal with his assets in ways other than just hiding them as if he was not bankrupt.

On the other hand, the [bankrupt] has not suggested in his application notice or in his oral submissions that he will suffer any irremediable harm if a stay is not granted, and, in any event, he did not take me to any documents which would support such a submission. Indeed, as I have already noted, the bankruptcy order has already been advertised over a month ago, so that, if the bankruptcy order itself has done any harm to the [bankrupt], that harm has likely been done already. The [bankrupt] has suggested, which I have weighed in the balance, that it will be inconvenient, as a matter of practice, for him to comply with the Official Receiver's requirements, because he needs to work and prepare his appeal and it would be inconvenient for him to have to work and prepare his appeal whilst also complying with the Official Receiver's requirements. That, on the evidence before me, with the greatest of respect to him, hardly amounts to irremediable harm.

Further, the grounds in support of the application are anything but solid, I am afraid, as to which I make these two comments. First, the fact that the [bankrupt] does not set out his reasons, in support of a stay, in his appellant's notice does not mean that there are any grounds for a stay. Second, the service failure about which he complains, the absence of personal service, is only relevant if it is a sufficiently strong ground of appeal to outweigh what I have identified are the weighty factors, on the other side of the balance, against the grant of a stay. Unless the alleged service failure is a sufficiently strong ground of appeal, it cannot support any argument that the [bankrupt] will suffer prejudice if a stay is not granted, and so cannot outweigh the weight of competing factors. The alleged service failure is not a ground of appeal at all at the moment. In any event, I am doubtful that any failure to serve personally will take the [bankrupt] very far in the appeal in any event, because he was present at the hearing of the bankruptcy petition, and so would have been well aware of it and of the bankruptcy order, and, in any event, there is a longstanding order for substituted service of the petition which is not the subject of appeal.'

[28b] In Tyshchenko v Hyde [2024] EWHC 838 (Ch) ('Tyshchenko'), amongst other things:

(1) a company called WWRT Limited issued a claim (BL2020-001416) against the bankrupt (then debtor) for £65m (the 'WWRT claim'; sometimes called the 'Civil Proceedings')). WWRT claimed to be the assignee of the claim, but a different entity, DGF, claimed that WWRT were not the assignee and that the right to claim against the bankrupt remained with DGF (paragraphs 8 + 9);

(2) the bankrupt applied for her own bankruptcy (paragraph 11), and was declared bankrupt (paragraph 11);

(3) 'her' only significant assets identified was a family home in Surrey: Tanglewood Villa (paragraph 12). Technically, '[The bankrupt was the beneficial owner of the house, with her interest in the house held via an Isle of Man company, Copper Homes Limited...'. In related proceedings, the bankrupt's trustees ('TIBs') obtained a declaration that '...the beneficial interest in the shares of Copper Homes Limited vested in the Trustees.' (paragraph 13);

(4) '[TIBs] applied in the ...County Court for an order for possession and sale of the property.' (paragraph 13);

(5) each of WWRT and DGF put in proofs of debt, based on each having the claim, for £65m and £32m respectively. There were no other substantial unsecured creditors ('Other than those two creditors, the only remaining confirmed debt is a sum of a little over £5000 which [the bankrupt] has already said that she can pay' - paragraph 11);

(6) The bankrupt filed applications seeking, amongst other things, to: (a) stay the bankruptcy proceedings; and (b) to stay or prohibit the possession and sale of Tanglewood Villa (paragraph 14) (the 'Stay Applications'). These were later reformulated to seeking:

'...a stay of the bankruptcy proceedings, the suspension of the powers of the Trustees, and a prohibition on the sale of Tanglewood Villa, pending the determination of the WWRT proceedings.' (paragraph 16)

(7) The Stay Applications were listed for 11.1.23 before ICCJ Prentis. The bankrupt did not attend but applied in advance for an adjournment of 11.1.23 hearing (paragraph 1). The adjourment application was refused (paragraph 1) and ICCJ Prentis went on to dismiss the Stay Applications (paragraph 1).

(8) The bankrupt lodged her N161 Appellant's Notice, against both ICCJ Prentis' decisions (i.e (a) refusal to adjourn 11.1.23 hearing; and (b) dismissal of Stay Applications)(paragraph 23));

(9) In the County Court, a possession and sale order was made in respect to Tanglewood Villa, in favour of the TIBs and against the bankrupt (paragraph 21). The bankrupt vacated Tanglewood Villa on 23.8.23 and the TIBs commenced the process of marketing Tanglewood Villa for sale (paragraph 22).

(10) Without TIBs objection, the bankrupt 'reformulated' (paragraph 31) the relief sought (again) - now seeking:

(a) to stay the bankruptcy proceedings until the adjudication of the WWRT claim (claim BL2020-001416) or to stay the sale of Tanglewood Villa until the adjudication of the WWRT claim; and

(b) to remove the bankruptcy trustees and set aside relevant decision of the State secretary’s office,

or, as it was later put:

'It is apparent ... that her two main objectives, in the present appeal as in her applications before ICC Judge Prentis, are (i) to remove the trustees and (ii) to stay the bankruptcy proceedings so as to postpone any sale of her property until the determination of the WWRT proceedings.' (paragraph 31). For completeness, Bacon J said that the bankrupt was '...also pursuing an argument that the judge was wrong to refuse to adjourn the hearing given her absence on medical grounds.' (paragaph 33).

(11) the permissions to appeals/substantive appeals came before Bacon J, who held a 'rolled up' permission to appeal/substantive appeal hearing (paragraph 2)

(12) In his judgment, Bacon J, under the subheading 'The dismissal of the say application', set out, at paragraph 60, the 3 principal grounds (other arguments existed - paragraph 85) the bankrupt appealed against ICCJ Prentis' dismissal of her Stay Application. The bankrupt relied upon:

(a) An allegation of conflict of interests on the part of the TIBs;

Bacon J later described each part of this (two part) allegation as 'hopeless' (paragraphs 71 and 73)

(b) Criticisms of the costs incurred by the TIBs;

Bacon J later dismissed this ground. There was confusion over the exact TIBs remuneration figure (likely a figure £655,719 in relation to the Trustees’ costs, plus over £1.2 million in legal fees - paragraph 76), but Bacon J said, at paragraph 77 and 78:

'...the precise quantum of the [TIBs] remuneration is not material. There is no doubt that the [TIBs] have incurred significant costs in administering the estate. [The bankrupt] will be able to challenge the reasonableness of those costs in due course under rule 18.35 of the Insolvency Rules if there is or is likely to be a surplus of assets (or would be a surplus but for the disputed remuneration of the [TIBs]), a point acknowledged by the judge. That is, however, not a reason to stay the bankruptcy proceedings.

Again, while [the bankrupt's] maintained her objection to the proportionality of the costs incurred by the [TIBs], she did not explain why that should lead the court to stay the proceedings now, in circumstances where the amount of the costs incurred will be able to be scrutinised and determined further down the line on the application of any interested parties. I therefore refuse permission on this ground of appeal.'

(c) The fact that the TIBs will not be distributing the proceeds of sale of Tanglewood Villa until after the determination of the WWRT proceedings.

(i) It was common ground (between the bankrupt and TIBs) that '...the distribution of [the bankrupt's] assets to her creditors will not and cannot take place until after the determination of the WWRT proceedings.' (paragraph 82). The TIBs evidence included:

'Both WWRT’s and the DGF’s claim are intrinsically linked to the Civil Proceedings and are contingent on the outcome and so the [TIBs] have decided that until such time as the Civil Proceedings are determined, we cannot and will not adjudicate upon either claim.' (paragraph 81)

(ii) Bacon J explained, at paragraph 83:

'One possible outcome of those proceedings is that [the bankrupt] will be wholly successful in such a way as to determine, in her favour, both the WWRT and the DGF’s claims against her in the bankruptcy proceedings, leaving only the question of the Trustees’ costs. [The bankrupt] said ...in that event she would almost certainly be able to borrow money, secured against the property, to pay off her remaining debts including the [TIBs’] reasonable expenses. ... [The bankrupt]...contends that she is likely to succeed in the WWRT proceedings, but I cannot take a view on that for the purposes of this appeal. The [TIBs] notably do not take any position as to the merits of the WWRT proceedings and certainly do not contend that [the bankrupt] has no realistic prospect of success.'

In such an eventuality, the evidence was mixed (paragraph 85) about the bankrupt's ability to raise finance to pay off the TIBs expenses of administering the bankrupt estate. In essence, the point was: there was a chance that: (a) the WWRT claim and DGF claim against her would fail; (b) the unsecured creditors against her bankrupt estate would be £5000 rather than in the millions; (c) she could raise finance to pay off the TIBs expenses (and presumably the £5000) and so, the Tanglewood Villa would not need to be sold for the purposes of the bankrupt estate (and '...thus apply for the annulment of her bankruptcy...' - paragraph 103). So why not stay the bankrupt order in respect to the obligation upon the TIBs to sell Tanglewood Villa, until at least the outcome of the WWRT claim and DGF claim is known (given the TIBs have said they aren't going to pay out the net proceeds of sale of Tanglewood Villa until that point anyway)? 

(iii) On this ground, the appeal succeeded (but only so far - see below), because:

- firstly, the first instance judge had failed to consider whether to make an order staying the bankruptcy order on this basis. Bacon J said that the first instance judge had wrongly deferred this question to the County Court hearing the possession and sale order proceedings in respect to Tanglewood Villa. Bacon J at paragraph 96 in Tyshchenko said '...the judge erred in failing to consider the impact of the WWRT proceedings on the application for a stay of the bankruptcy, and instead deferring that to the Kingston-upon-Thames possession hearing. The appeal in relation to the dismissal of the stay application must therefore be allowed, in so far as that application concerned the Trustees’ possession and sale of Tanglewood Villa.'

- (on the reconsideration of the totality of the evidence following holding it was appropriate to revisit the substantive conclusions reached in circulated draft judgment prompting further evidence and submissions - paragraph 112), Bacon J said:

'The starting point is to acknowledge the [TIBs'] position that there will be no adjudication of the WWRT and DGF claims in the bankruptcy until after the determination of the WWRT proceedings. The [TIBs] have therefore explicitly confirmed that even if Tanglewood Villa is sold, those creditors will not receive any distribution of the proceeds until after the determination of the WWRT proceedings. The [TIBs] have also not said that they would seek to recover their own fees and their legal costs before the determination of the WWRT proceedings. The trial of those proceedings is listed for January and February 2025. Once judgment is given there may well be an appeal. Realistically, therefore, it is very unlikely that the proceedings will be determined much before the summer of 2025, and quite possibly not until 2026 if there is an appeal.' (paragraph 119)

But, after noting (paragraphs 120 to 136), in essence: (a) the evidence the Tanglewood Villa value had declined significantly and might continue to do so - and the obligation on TIBs to get the best price possible for assets in the bankrupt estate; (b) Tanglewood Villa generated signficant monthly ongoing costs, which the TIBs would be left to fund - without, realistically, funds likely from the bankrupt/bankrupt's family; (c) doubts about bankrupt's ability to raise funds on the value of Tanglewood Villa; and (d) scale of TIBs likely recoverably expenses, Bacon J concluded, at paragraphs 137 to 138:

'I am not satisfied that in the event of success in the WWRT litigation [the bankrupt] is likely to be able to meet the costs and expenses of the bankruptcy without selling Tanglewood Villa. On the contrary, it appears probable that even if [the bankrupt] is successful in the WWRT proceedings, the property will have to be sold in any event. That is a factor which strongly weighs in favour of the bankruptcy proceeding in this regard.

The overall position is that ... I am not able to conclude that there are compelling reasons why the bankruptcy should not take its normal course, in respect of the possession and sale of Tanglewood Villa. Quite the contrary, I consider that the reasons set out above weigh heavily in favour of the possession and sale of the property now proceeding unhindered so as to enable the [TIBs] to recoup their expenses already incurred in relation to the preparation and marketing of the property, avoid further ongoing expenses which will diminish the value of the estate, and achieve the best possible price for the property in the interests of the creditors of the estate.'

So the result was, that although the appeal succeed, Bacon J reconsidered the Stay Application herself, and decided to reach the same conclusion as the first instance judge had done. She concluded that the bankrupt's '...application to stay the bankruptcy proceedings in relation to the possession and sale of Tanglewood Villa must be dismissed.' (paragraph 139)

[29] Rule 11.16 is a reference to rule 11.16 in the Insolvency (England and Wales) Rules 2016, entitled 'Entry of information on to the individual insolvency register: bankruptcy orders'. That rule provides:

'(1) Where the official receiver receives a copy of a bankruptcy order from the court under rule 10.32, or from the adjudicator under rule 10.45, the official receiver must cause the following to be entered on the individual insolvency register

(a) the matters listed in rules 10.8 or the information set out in Part 1 of Schedule 7, relating to the debtor as they are stated in the bankruptcy petition or bankruptcy application;

(b) the date of the bankruptcy order; and

(c) identification details for the proceedings.

(2) The official receiver must cause to be entered on to the individual insolvency register the following information

(a) the bankrupt’s identification details and date of birth;

(b) the bankrupt’s gender and occupation (if any);

(c) the date of a previous bankruptcy order or debt relief order (if any) made against the bankrupt in the period of six years before the latest bankruptcy order (if there is more than one such previous order only the latest and excluding any bankruptcy order that was annulled or any debt relief order that was revoked);

(d) any name by which the bankrupt was known, not being the name in which the individual was made bankrupt;

(e) the address of any business carried on by the bankrupt and the name in which that business was carried on if carried on in a name other than the name in which the individual was made bankrupt;

(f) the name and address of any insolvency practitioner appointed to act as trustee in bankruptcy;

(g) the address at which the official receiver may be contacted;

(h) the automatic discharge date under section 279; and

(i) where a bankruptcy order is annulled or rescinded by the court, the fact that such an order has been made, the date on which it is made and (if different) the date on which it has effect.

(3) Where the official receiver receives a copy of an order under rule 10.104(6) or 10.142(8) suspending the bankrupt’s discharge the official receiver must cause to be entered on to the individual insolvency register

(a) the fact that such an order has been made; and

(b) the period for which the discharge has been suspended or that the relevant period has ceased to run until the fulfilment of conditions specified in the order.

(4) Where the official receiver receives under rule 10.143(10) a copy of a certificate of the discharge of an order under section 279(3) the official receiver must cause the following to be entered on the individual insolvency register(a) that the court has discharged the order made under section 279(3); and

(b) the new date of discharge of the bankrupt.

(5) Where the order discharging the order under section 279(3) is subsequently rescinded by the court, the official receiver must cause the register to be amended accordingly.

(6) Where a bankrupt is discharged from bankruptcy under section 279(1), the official receiver must cause the fact and date of such discharge to be entered in the individual insolvency register.

(7) This rule is subject to any court order for the non-disclosure of the debtor’s current address made under rule 20.5 (persons at risk of violence: bankruptcy application) or 20.6 (debtors at risk of violence: bankruptcy and debt relief proceedings).'

For completeness, readers might be interested to read r.11.17, entitled 'Deletion of information from the individual insolvency register: bankruptcy orders', which provides:

'The Secretary of State must delete from the individual insolvency register all information concerning a bankruptcy where-

(a) the bankruptcy order has been annulled under section 261(2)(a), 261(2)(b) or section 282(1)(b) and a period of three months has elapsed since a notice of the annulment was delivered to the official receiver;

(b) the bankrupt has been discharged from the bankruptcy and a period of three months has elapsed from the date of discharge;

(c) the bankruptcy order is annulled under section 282(1)(a) and 28 days have elapsed since a notice of the annulment was delivered to the official receiver under rule 10.137(3); or

(d) an order has been made by the court under section 375 rescinding the bankruptcy order and 28 days have elapsed since receipt by the official receiver.'

[30] In Howell v Hughes [2019] EWHC 1559 (Ch); [2019] BPIR 1211, Fancourt J said, at paragraph 32:

'I can, however, make specific provision that will protect the [bankrupt's] legitimate interests in the County Court proceedings and consider that I should do so. It would be wrong to allow those proceedings to fall by inaction prior to any informed decision on whether they should be continued for the benefit of the estate of the [bankrupt] or for the [bankrupt's] benefit in the event of an annulment or rescission of the bankruptcy order.'

[31] In Howell v Hughes [2019] EWHC 1559 (Ch); [2019] BPIR 1211, Fancourt J:

(1) anticipated an application be made in the County Court Claim. He said, at paragraph 33:

'In the course of argument on this application, the supporting creditors indicated that they were willing to undertake to apply for a stay of the applications to be heard in the High Court and in the Country Court. The Official Receiver also indicated that she was agreeable to making such an application to each court informing the court of the circumstances and the reason for the application.'

(2) prescribed the events which would cause the stay to lapse. He said, at paragraph 34:

'The application for the stay should, in my judgment, be pending the happening of any of the following events:

(1) annulment or rescission of the bankruptcy order, whether pursuant to the appeals or the application that has been issued;

(2) a decision by the Official Receiver or a trustee to pursue the applications in the High Court and the County Court and/or claim for the benefit of the estate those actions;

(3) a decision by the Official Receiver whether or not to assign the right of action to the [bankrupt].

If a decision is made not to assign the benefit of the action to the [bankrupt], then the stay should nevertheless continue until the [bankrupt's] appeals and annulment application have been determined.'

[32] Emap Active Ltd v Hill  [2007] BPIR 1228 ('Emap') contains an example of a stay of a bankruptcy order being made, with an accompanying order prohibiting publicity of a bankruptcy order. The example was actually just background to the actual dispute in Emap, but it is still interesting. Morgan J in Emap recorded, at paragraph 11:

'[The bankrupt] has stressed that he has, so to speak, been here before. There was a bankruptcy order made in the County Court on [12.7.06], and he applied to have that order annulled. On [21.7.06], the District Judge in the County Court ordered that the bankruptcy proceedings be stayed, and he ordered in particular that there be no publicity given to the fact of the earlier bankruptcy order and indeed, on [27.7.06], the bankruptcy of [12.7.06] was indeed annulled. [The bankrupt] said that worked very well then. He says that all that needs to be done is for a repeat of that order at the present time.'

[33] In Emap Active Ltd v Hill  [2007] BPIR 1228 ('Emap'), Morgan J, giving judgment on 22.5.07, explained his view on whether or not to grant a stay of the bankrupt order pending the permission to appeal hearing, at paragraphs 9 to 14:

'9. The real difficulty which has presented itself today is what should happen to the business, formerly run by [the bankrupt], between today's date and possibly 5th June, or a later date when the application for permission to is dealt with. It seems clear that the court has power, even though a bankruptcy order has been made, to grant something by way of a stay of the operation of that order. The position is dealt with in paragraph 17.14 of the Practice Direction dealing with insolvency proceedings. That paragraph reads:

"Unless the appeal court orders otherwise, an appeal shall not operate as a stay of any order or decision of the lower court."

That indicates that this court can direct that the appeal, including the present application for permission to appeal, shall operate as a stay of the order or decision given in the Luton County Court on 25th April 2007. The wording of the Practice Direction is essentially the same wording as applies to any appeal court under the Civil Procedure Rules, Rule 52.7, and the White Book indicates the circumstances in which it is right and in which it is not right to grant a stay pending appeal. A classic example of when it is right to order a stay, is when real harm would be done if the order appealed against remains in force and effect, and is then set aside by way of a successful appeal. That could apply in the present case if [the bankrupt] obtains permission to appeal, and if his appeal succeeds then the [25.4.07 bankruptcy order] will be set aside. It is possible the petition will be dismissed. It is also possible the matter will be remitted to the County Court for further consideration. And so, [the bankrupt] in that state of affairs will not have been the subject of a bankruptcy order after all, taking effect from [25.4.07].

10. In those circumstances I can state that I am very ready to do something to hold the ring fairly between the parties for the short period needed until the application for permission to appeal is dealt with. If permission to appeal is granted then the court can consider what to do pending the hearing of the appeal, and I say nothing about that.

11. This presents the next difficulty, which is essentially a practical one as to what form of intervention from the court is appropriate in these circumstances. [The bankrupt] has stressed that he has, so to speak, been here before. There was a bankruptcy order made in the County Court on [12.7.06], and he applied to have that order annulled. On [21.7.06], the District Judge in the County Court ordered that the bankruptcy proceedings be stayed, and he ordered in particular that there be no publicity given to the fact of the earlier bankruptcy order and indeed, on [27.7.06], the bankruptcy of [12.7.06] was indeed annulled. [The bankrupt] said that worked very well then. He says that all that needs to be done is for a repeat of that order at the present time.

12. I fear that the position is more complicated than that. Everyone in July 2006 appears to have been prepared to live with a stay without, perhaps, investigating just what a stay meant, when there had been an effective bankruptcy order followed by an application to annul the bankruptcy order. There is also a practical difference between today and July 2006. In July 2006 [the bankrupt] was actually running his business. Today, [the bankrupt] is not running his business, he has not been running since, I think, 8th May, and something more active is required from the court to enable [the bankrupt] to get back into business on a day-to-day basis.

13. At one point in the course of argument the practical problems appeared to me to be intractable. I was, I confess, tempted by the idea of not doing anything and hoping that an early hearing of an application for permission would be the best assistance the court could offer. I am not prepared to take that rather passive attitude. I do think the appropriate response of a court in the present case is to seek to be more proactive in assisting [the bankrupt] in case, in the end, he is able to bring a successful appeal and have the bankruptcy order set aside. I have asked [the bankrupt] if he is prepared to give an undertaking to the court in certain terms, which I will refer to in a moment, and he has indicated that he is prepared to give that undertaking. I have explained to [the bankrupt] that an undertaking to the court is a serious matter and a breach of it will normally be a contempt of court for which a range of sanctions is possible, including very serious sanctions. [The bankrupt] I believe, understands what has been discussed and explained to him, and he is prepared to give the undertaking accordingly.

14. Accordingly, upon [the bankrupt] giving the following undertaking to the court, I am prepared to order a stay of the order made in the County Court on 25th April 2007 in circumstances where the Trustee will be obliged to permit [the bankrupt] to return to his place of business to take control of the property in that place of business, and to continue his business, or to restart his business until this matter comes back before the court.'

[34] In Emap Active Ltd v Hill  [2007] BPIR 1228 ('Emap'), Morgan J set out the undertaking (made up of subparts) he considered a pre-condition to any stay order being made, at paragraph 15:

'The first part of the undertaking is that [the bankrupt] will not dispose of, or attempt to dispose of, any property whether that be land or buildings or personal property, which property is owned solely by him or jointly by him. The second undertaking is that in the course of running his business [the bankrupt] undertakes to pay all receipts from that business into a bank account. The third undertaking is that, [the bankrupt] will pay the receipts into a bank account which he identifies to the Trustee in the course of tomorrow morning; that is 23rd May. I am going to supplement that undertaking which I mentioned to [the bankrupt], that [the bankrupt] will use his best endeavours to set up an account or to use an account made available to him by the Trustee so that payments into the relevant bank account will not go to reduce or discharge any pre-existing debt by way of overdraft to a bank. It may not be possible for that to be achieved but I very much wish [the bankrupt] to cooperate with the Trustee with a view to achieving that. The next undertaking is that [the bankrupt] will use monies in the bank account and indeed, any other monies which come into his hands in the course of his business only for the purpose of paying the day-to-day expenses of the business from the present time until the matter returns to the court, and paying staff wages, and paying reasonable living expenses for [the bankrupt]. And finally, [the bankrupt] undertakes, indeed he volunteers, to draw up a daily account of all receipts and all disbursements in that business, the account to be available to the Trustee by 10am on the day following the relevant date of account.'

Morgan J in Emap said, at paragraph 16, '...upon that undertaking from [the bankrupt] being given to the court...I will grant a stay of the [24.4.07 bankruptcy order].'

[35] Section 291 of the Insolvency Act 1986 is entitled 'Duties of bankrupt in relation to official receiver' and provides:

'(4) The bankrupt shall give the official receiver such inventory of his estate and such other information, and shall attend on the official receiver at such times, as the official receiver may reasonably require

(a) for a purpose of this Chapter, or

(b) in connection with the making of a bankruptcy restrictions order.

(5) Subsection (4) applies to a bankrupt after his discharge.

(6) If the bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).'

[36] Section 333 of the Insolvency Act 1986 is entitled 'Duties of bankrupt in relation to trustee' and provides:

'(1) The bankrupt shall

(a) give to the trustee such information as to his affairs,

(b) attend on the trustee at such times, and

(c) do all such other things,

as the trustee may for the purposes of carrying out his functions under any of this Group of Parts reasonably require.

(2) Where at any time after the commencement of the bankruptcy any property is acquired by, or devolves upon, the bankrupt or there is an increase of the bankrupt’s income, the bankrupt shall, within the prescribed period, give the trustee notice of the property or, as the case may be, of the increase.

(3) Subsection (1) applies to a bankrupt after his discharge.

(4) If the bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).'

See cases such as: (1) Morris v Murjani [1996] BPIR 458; (2) Williams v Mohammed [2011] EWHC 3293 (Ch); [2011] BPIR 1787; (3) Horton v Henry [2016] EWCA Civ 989; (4) Chadwick v Nash [2012] BPIR 70; (5)

[37] Section 312 of the Insolvency Act 1986 is entitled 'Obligation to surrender control to trustee' and provides:

'(1) The bankrupt shall deliver up to the trustee possession of any property, books, papers or other records of which he has possession or control and of which the trustee is required to take possession.

This is without prejudice to the general duties of the bankrupt under section 333 in this Chapter.

(2) If any of the following is in possession of any property, books, papers or other records of which the trustee is required to take possession, namely

(a) the official receiver,

(b) a person who has ceased to be trustee of the bankrupt’s estate, or

(c) a person who has been the supervisor of a voluntary arrangement approved in relation to the bankrupt under Part VIII,

the official receiver or, as the case may be, that person shall deliver up possession of the property, books, papers or records to the trustee.

(3) Any banker or agent of the bankrupt or any other person who holds any property to the account of, or for, the bankrupt shall pay or deliver to the trustee all property in his possession or under his control which forms part of the bankrupt’s estate and which he is not by law entitled to retain as against the bankrupt or trustee.

(4) If any person without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).'

[38] In Re Goremsandu [2019] EWHC 2397 (Ch) ('Goremsandu'), the bankrupt sought:

(a) '...an interim injunction restraining the trustees in bankruptcy from inquiring into her affairs and an order requiring them to remove restrictions that they have placed on properties that she owns, either in her own name or jointly with her son. That injunction is sought pending the outcome of an application that she has made to have her bankruptcy annulled.' (paragraph 1);

(b) 'The application for an injunction... is, in particular, to seek to require the trustees in bankruptcy (1) to remove restrictions that they have placed on the title to the properties that [the bankrupt] owns, (2) to provide access to bank accounts, so that she can receive payment of her pension - I am told that she has not been able to have her pension since the bank in question became aware of her bankruptcy – (3) to prevent the trustees in bankruptcy from interfering with the tenancies of the properties that she owns and, more generally, (4) to restrain them from conducting the affairs of the bankrupt estate until January 2020.' (paragraph 5) (January 2020 being the bankrupt's hearing of her applications for (a) stay of the bankruptcy order (b) annulment of the bankruptcy order).

[39] In Re Goremsandu [2019] EWHC 2397 (Ch) ('Goremsandu'), the bankrupt sought, amongst other things:

(1) access to her access to bank accounts, so that she can receive payment of her pension (paragraph 5); and

(2) to reduce the threat of repossession of some of 'her' properties (paragraph 11).

Fancourt J in Goremsandu said, as to these, respectively:

'If she cooperates with her trustees in bankruptcy, then it seems to me to be highly likely that a sensible arrangement will be able to be made in relation to one or more of her bank accounts to enable her pension to be paid into that account.' (paragraph 10)

'So far as a threat of repossession of the properties is concerned...If there is a threat, whether it is based on the fact of the bankruptcy or on non-payment of mortgage interest, that again is a matter that the trustees in bankruptcy, as well as [the bankrupt], will have a legitimate interest in seeking to resolve with the mortgagees. The trustees are under a duty to preserve and to protect the assets of the estate. Once again, it seems to me that what is needed is cooperation between [the bankrupt], and the trustees in bankruptcy. I am told that they have not yet been provided with information about the rent payments that are made by the tenants of the various properties. It is necessary, in my judgment, for [the bankrupt], to provide this relevant information to the trustees in bankruptcy, including details about the mortgages, so that the trustees can engage, as appropriate, with the mortgagees and seek to ensure that no repossession, which will be prejudicial to the interests of [the bankrupt] or her creditors, takes place. Unless she cooperates with her trustees in bankruptcy, those elementary steps will not be able to be undertaken.' (paragraph 11)