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Duty To Cooperate On A Timely Basis
There are two notable extracts from Mr Justice Norris’ review of this appeal of a bankrupt’s suspension of discharge:
A clear message must go to those who are made bankrupt that it is not sufficient to say “My computer is broken. I have lost some of my records. Others of my records are in store and I’m not sure where they are because other people can move them”. It is the duty of the bankrupt to provide the information which a trustee reasonably requires to discharge his duties to the creditors i.e. proper records (and in the absence of proper records, sufficient information supported by such material as is available) to enable the trustee to identify and take into his control all available assets and to identify all sources of potential benefit for creditors. It is the duty of the bankrupt to provide the material that is reasonably required for that purpose (whether the trustee can identify specific documents or not).
Many ordinary citizens who are on “zero hours” contracts get by in life without requiring between four and ten weeks’ notice of any proposed appointment or request for information. Having made these arrangements Mr Keely unbendingly refused to depart from them for the convenient administration of his bankruptcy affairs because he chose to take that course. Making that choice is not doing all that can reasonably be done to comply with statutory obligations.
Full Judgment (Bankrupt’s Duty To Cooperate With Trustee)
Alexander Keely (“Mr Keely”) was entitled to a 50% share in the estate of the late Delia Keely (“the Will Trust”). He had a long running dispute with the executors of the Will Trust, at the end of which the executors said that he owed them about £128,350 in respect of unpaid costs orders and other liabilities. On the 21 January 2014 they petitioned for the bankruptcy of Mr Keely, founding the petition on part of this debt. On the 4 July 2014 Mr Keely was adjudged bankrupt by DJ Smith. There is an outstanding application for permission to appeal this order (permission having been refused on paper). On the 25 September 2014 Gary Bell of Bell Advisory Ltd was appointed to be Mr Keely’s trustee in bankruptcy (“the Trustee”).
When he became bankrupt s.291 of the Insolvency Act 1986 (“the 1986 Act”) imposed on Mr Keely the duty to deliver possession of his estate to the Official Receiver, and to deliver up to the Official Receiver all his books, papers and other records relating to his estate and affairs. Mr Keely complied with this duty to the extent that he completed the standard booklet and provided certain information and documents in answer to preliminary questions raised by the Official Receiver. He provided to a named person in the office of the Official Receiver an authority to obtain copies of statements relating to the bank accounts which he disclosed, and in relation to his tax affairs.
The main asset in the bankruptcy estate was Mr Keely’s house at 142 Hale Road, Altrincham (“the Property”). (His share of the Will Trust apparently does not have significant value because of the money he owes the executors, and which he must pay into the trust before he can get anything out). Mr Keely’s answers to a Questionnaire sent by the Trustee in February 2015 disclosed that Mr Keely (who is a professionally qualified civil engineer) was currently employed as an administration clerk, but that the amount he was paid was variable. In answer to the question whether he was currently or ever had been self-employed he answered “yes”. He then gave income details from self-employment as averaging £1,450 per calendar month (including rental income from a lodger). But he said that his outgoings were over £2,400 per month (including £100 per month for telephone charges). He disclosed that there were “legal matters relating to [the Estate]”, being “a large fraud claim against the administrator”. The Questionnaire had concluded with a reminder of Mr Keely’s duty to provide to his trustee in bankruptcy all such information as to his affairs and to do all such other things as may reasonably be required to enable the trustee to carry out his functions, and a reminder of his duty to notify the trustee if there was any increase in his income. Immediately above Mr Keely’s signature was an acknowledgment that he understood that he must assist the trustee in the carrying out of his duties and make full disclosure to the trustee of his affairs.
Although Mr Keely’s affairs do not appear complex (subject to a degree of uncertainty about his ability to maintain his living standards on the disclosed income, and a degree of complexity relating to the litigation with the Estate) Mr Keely’s bankruptcy was not an easy one for the Trustee to administer. Although Mr Keely expended £100 per month on telephone charges, he did not have the use of a landline, the telephone apparently being for the exclusive use of his lodger. Nor did Mr Keely have a mobile telephone: he did make calls from a mobile telephone, but the phone would be borrowed for the occasion from a friend. Although Mr Keely could and did send faxes to the Trustee, these were from a facility that did not belong to him and he could not receive faxes in reply. Although the telephone charges included a broadband connection and Mr Keely would email the Trustee, he did not himself have an email address, the broadband connection being for the exclusive use of his lodger. Although Mr Keely lived at the Property, he was unable to receive post there, and had to use the address of a friend as a correspondence address, so that he could not receive post if his friend was away. Mr Keely’s records were not kept at the Property where he lives, but are stored “off-site” in a facility that is under the control of a third party, is unlocked and shared with others who have open access to it and move the stored records about, so that Mr Keely is unable to say at any time what is “in his possession”. Although not apparently in regular full time employment Mr Keely was only available to attend to bankruptcy matters on a Friday afternoon (and, indeed, has required all court hearings to be fixed for Friday). The flavour of the difficulties thereby occasioned may be gathered from Mr Keely’s letter to the Trustee of the 20 May 2015 which includes the following:-
“As you are fully aware, I am only available and free on Friday afternoons on sufficient notice i.e. 6-8 weeks, as I have to be available for work on all other weekdays…I have previously provided reasons and advised you that all post has to go to [the Didsbury address], you also need to be mindful that C Whyte is often outside of Manchester and as such it takes time to get to me…Please ensure that in all future correspondence you plan ahead with greater foresight, with any lead in times or deadlines imposed and allow at the very minimum 4 weeks response times…”
Indeed, if a bankrupt had set about being deliberately obstructive it is difficult to see what greater obstacles he could have placed in the way of his trustee than those that apparently arose out of Mr Keely’s circumstances.
Under s.279(1) of the 1986 Act Mr Keely was due to be automatically discharged from his bankruptcy on the 4 July 2015. On 30 June 2015 the Trustee applied under s.279(3) of the 1986 Act for an Order that the discharge be suspended. The return date of the application was the 14 July 2015. At the hearing before me Mr Keely submitted that this application was irregular and out of time. He pointed out that under rule 6.215(5) of the Insolvency Rules 1986 (“the 1986 Rules”) the evidence of the trustee should have reached him at least 21 days before the date fixed for the hearing, and if the hearing had to take place before the automatic discharge date then the Trustee was out of time.
I do not accept that this is a “knockout” point. The application had only to be made before the automatic discharge date: Bagnall v Official Receiver  EWCA Civ 1925. Mr Keely is, however, correct to point out (a) that the application was late (b) the lateness of the application is a factor to be taken into account by the Court when deciding the application; and (c) that the return date did not afford Mr Keely the 21 days to which he was entitled. The application of the Trustee should have included an application for permission to serve short.
Mr Keely managed to file evidence on the application, albeit that it only reached the Trustee the day before the hearing. On the return date the Trustee sought (and obtained) an adjournment to respond to this evidence and a further hearing date was fixed for the 16 October 2015. The necessity for this adjournment arose from the procedural failure of the Trustee, not from any delay on the part of Mr Keely. But the adjournment gave time for Mr Keely to review his evidence and the additional evidence of the Trustee, and to prepare his case. At the adjourned hearing District Judge Bever ordered that Mr Keely’s discharge be suspended for 12 months.
Against that Order Mr Keely appeals. The hearing before me is a “rolled up” hearing for permission to appeal and (if granted) for the appeal to follow.
As I explained to Mr Keely, the appeal is not an opportunity for him to try again to resist the Trustee’s application. Absent a serious procedural irregularity, the appeal will only be allowed if District Judge Bever made an error of law (including reaching a decision that is perverse on the material before him). Further, the appeal must be decided on the material that was before District Judge Bever. When it comes to a consideration of that material, the primary fact finder is District Judge Bever, as the judge deciding the application. If the state of the evidence is such that a factual finding was lawfully open to him, then that is an end of the matter. If I, as the appeal court, conclude that the factual finding was not lawfully open to District Judge Bever as the trial judge, then I must interfere.
The legal context in which District Judge Bever had to decide the Trustee’s application was this:-
- a) The power to make an order suspending the automatic discharge could be exercised only if it was sufficiently proved that the bankrupt had failed or was failing to comply with his or her statutory obligations:
- b) Given the broad scope and onerous nature of those statutory obligations a bankrupt will not “fail to comply” if he or she has done all that could reasonably be done to fulfil those obligations:
- c) A bankrupt who has not done all that could reasonably be done may by order under s. 279(3) be made, in the public interest, to suffer the continued disabilities of being an undischarged bankrupt:
- d) The making of such an order may provide an incentive to full compliance with the statutory duties, but that is not necessarily its primary purpose:
- e) Whilst an application might be made at any time during the bankruptcy, trustees who leave it to the last minute to apply run the risk that the judicial discretion will be exercised against the grant of relief:
- f) Even after discharge a bankrupt remains under an obligation to provide information to his trustee, but the criminal sanctions for breach of that obligation no longer apply (so that there is a risk that compliance may thereafter be more difficult to secure).
District Judge Bever held and found that Mr Keely was in breach of his statutory obligations in six respects:-
- a) He had failed to give notice of an increase in income:
- b) He had failed to disclose or deliver records relating to bank accounts with the Allied Irish Bank:
- c) He had conducted litigation against the Estate without consulting with the Trustee:
- d) He had failed to deliver up other records:
- e) He had failed to comply with reasonable requests to afford access to the Property:
- f) He had failed to correspond in good time with the Trustee and had imposed unreasonable terms for correspondence.
The District Judge acknowledged that the Trustee’s application had been made late in the day, but considered that it was only one factor to be weighed, and that Mr Keely’s shortcomings outweighed that factor in the balance. He postponed discharge for one year, taking the view that he could not make the discharge dependent upon satisfaction of conditions because in the absence of information the appropriate conditions could not be specified.
Mr Keely prepared initial and then finalised comprehensive grounds of appeal. He re-presented these in a skeleton argument. He had complained that at the hearing before District Judge Bever he had felt rushed and unprepared to meet the case made against him: I therefore allowed him twice his estimated hearing length to address his grounds of appeal. I will deal with the points which he made (both in his skeleton and in oral argument) in turn.
At the outset of his judgment and when dealing with background matters District Judge Bever said that the hearing on the original return date had been adjourned “to enable the Respondent, Mr Keely, to file evidence”. This was wrong. The fault did not lie with the judge, but with Counsel’s skeleton argument (which had misstated the position). A reading of the judgment shows that this error of fact had no bearing upon the outcome of the application. The error is not, either alone or in combination with other matters, a reason for allowing the appeal.
District Judge Bever held that Mr Keely was in breach of his obligation under s333(2) to communicate any increase in his income to the Trustee. The judgment proceeded on the footing (see paragraph 5) that Mr Keely accepted that he had told the Official Receiver on 8 August 2014 that he was unemployed, but that he accepted that he earned money. He said that he had provided all details by 24 September 2015 (i.e. after the Trustee’s application but before the final hearing date).
The position in detail appears to be that Mr Keely had answered the Trustee’s Questionnaire in the manner I have summarised above. This apparently generated an inquiry from the Trustee, to which Mr Keely responded on 1 March 2015:
“Provided income details to OR
Provided expense details to OR twice totalling £2,258 and £2,858 Please find enclosed…I had requested OR to complete income / expenses, and meeting had been arranged on 12/9/14 which was cancelled by OR. Consequently wrote them a letter stating if my income breached / exceeded expenses I would inform them. There has been no change in my circumstances…Given above facts I see it as highly unlikely that any payment will be due to you in any way. Should my income breach or exceed expense levels provided, I am happy to keep you informed”.
He thus provided details of his expenses but not of his income.
On 15 August 2015 Mr Keely wrote to the Trustee in relation to information about his income:-
“Assumed you are in possession of these, if you are not in possession of these, see OR. From memory, last accounts made to 2013. In order to update accounts from 2013, I would need to secure [full time] employment. Until such a time I cannot afford to finance…invoices…very few have been retained, mostly lost / misplaced but I will take a look to see what is available…I do not possess formal books, I will take a look to see if I can locate account summaries…it is most surprising that you are requesting such information now given I requested on 26 May 2015 if you required anything further I agreed to deal with it in June 2015 when I had more time available…”
In his evidence in response to the Trustee’s application Mr Keely asserted that he had “provided income details to D Bell in March 2015 as he requested”. But then in a letter dated 24 September 2015 (i.e. between the initial and final hearings of the Trustee’s application ) he asserted that he had been unable to comply with requests for information because, as he had explained to the Trustee, “[his] time in and during the whole of August / most of September was already committed and [he] had no time available”. He also explained that he had “computer issues” and was unable to use / access information within his own computer as there were persistent ongoing issues with his hard-drive crashing, where previous records had been wiped.
Finally, in a letter dated 31 December 2015 (which referred back to the Trustee’s letter of 1 March 2015) Mr Keely eventually gave figures for his total receipts (identifying one source as “rent” and the other as “other receipts”) but, as far as I can see, provided no supporting documentation. He concluded this letter:
“For sake of clarity, in the event I do not hear back from you within 14 days, I will assume the enclosed information provided is sufficient for your purposes, and also for any / all subsequent Court purposes, to which you, or your agent may potentially refer to (sic) at any point within the future”.
The District Judge of course did not and could not take this letter into account: but in so far as it indicates that it is a response to the Trustee’s request made 9 months earlier it constitutes an acknowledgment by Mr Keely that there was no material information provided in the interim.
In my judgment on this material DJ Bever was entitled to conclude that Mr Keely was in breach of his statutory obligations in that he had not done all that could reasonably be done to provide the Trustee with details of his income and with what appears to be an acknowledged increase in that income (albeit that it did not eliminate the claimed deficiency). There was sufficient evidence upon which that holding could be grounded. A bankrupt who says to his trustee “I told some else about my income six months’ ago: ask them. Things have not changed” does not do all that might reasonably be done to provide information about his income and any variations in it to his trustee.
District Judge Bever then found that Mr Keely had failed to deliver up records relating to or to disclose the existence of one active and three closed accounts with the Allied Irish Bank. The open account had a balance of only £10.23. The District Judge considered that the balance was “neither here nor there” because what mattered was the transactional history. The evidence of the Trustee disclosed that parties to the Will Trust dispute thought that Mr Keely may have misappropriated monies and the transactional history of the open and the closed accounts might assist in the recovery of property for creditors. Mr Keely’s evidence was that he had forgotten about the AIB account (which he considered a single account that may have been given different account numbers). It was therefore common ground that the AIB account has not been disclosed: the evidence shows that its existence was confirmed by the bank to the Trustee on 23 March 2015.
The evidence of the Trustee did not explain how the Trustee had discovered the existence of the AIB accounts: or whether (on the basis of the material available to the Trustee) Mr Keely ought not to have “forgotten” about these Irish accounts. My attention was not directed to any request by the Trustee (following his discovery of the AIB accounts) to Mr Keely for the provision of statements before the Trustee made his application.. Following the initial hearing there was such a request on 21 July 2015 and Mr Keely was undoubtedly uncooperative, telling the Trustee first to use the authority which had been given to the member of the Official Receiver’s office, and then to deal with the bank himself at his own expence.
On this evidence, and with respect to the District Judge, I do not think could properly have been held that Mr Keely was in breach of his statutory obligations of disclosure. In the absence of a request by the Trustee of Mr Keely between March 2015 and June 2015 for provision of details of the AIB accounts the case against Mr Keely had to rest on his having known about (but failed to disclose) the Irish Accounts. But since the Trustee did not explain how the AIB accounts had come to his attention and could not establish that Mr Keely ought to have known of them, I think the District Judge was bound to accept Mr Keely’s evidence (not, on its face, incredible) that he had “forgotten” the small open account. The Trustee could not establish, on the evidence adduced, that Mr Keely had failed to do everything that could reasonably be done to disclose the AIB accounts.
The District Judge then found (and, indeed, it was common ground) that Mr Keely had continued to litigate his dispute about the Will Trust with his family and the executors notwithstanding his own bankruptcy. He made applications (there was a dispute about whether some were separate applications, or whether one application replaced another) which were either struck out as being without merit or abandoned by consent. The objection of the Trustee was that he was not informed of this activity nor was he consulted about it. Mr Keely says that he was unaware that he had any obligation to notify the Trustee of this activity.
In my judgment the District Judge was correct to regard this as a breach of the statutory obligations of Mr Keely, and a failure to do what could reasonably be done to comply with those obligations. Mr Keely was seeking to get information from the executors and others to pursue his dispute against other members of the family in relation to the Will Trust (the very dispute that had landed him in bankruptcy). To do so he relied on his rights as beneficiary. His beneficial interest (whatever it was worth) had vested in his trustee in bankruptcy. The Trustee was entitled to be told that Mr Keely was spending money on Court proceedings (he acted in person but had to pay Court fees) at a time when he was telling the Trustee that so great was the deficiency of his income in respect of his necessary expenditure that he could not even afford to eat properly (and that there was no hope of the Trustee ever getting anything for the creditors out of Mr Keely’s income). This is not doing all that could reasonably be done to comply with the statutory disclosure obligations.
The District Judge considered that Mr Keely was in breach of his statutory obligations in respect of a failure to deliver up records. In paragraph 23 of his original witness statement the Trustee had given evidence that Mr Keely had not delivered up any documents either to the Official Receiver or to the Trustee. This was not accurate in that on 23 September 2014 Mr Keely had delivered up to the Official Receiver “what can be obtained via internet / what’s on file” in relation to his disclosed bank accounts for the period September 2012 to September 2014, some purchase invoices (though he said that compiling accounts had been of secondary importance to his litigating against the executors of the Will Trust) and three leases, together with an authority for the Official Receiver to contact the Inland Revenue. He told the Official Receiver that he needed at least 8-10 weeks to respond to any further requests, and that if this involved travel then the Official Receiver must pay Mr Keely £10 by postal order.
Mr Keely drew to my attention a receipt showing that he had posted one kilogram of documents to the Official Receiver (evidently thinking that their quantity and not their relevance was what was important). From the material I have seen the documents so provided to the Official Receiver would not have enabled much to have been done in the administration of Mr Keely’s bankruptcy estate (though they would have given some insight into the family dispute over the Will Trust, which was what absorbed Mr Keely). The evidence of the Trustee was therefore substantially correct (although not strictly accurate). In answering the Trustee’s Questionnaire Mr Keely indicated that he had no information held on file. This position Mr Keely maintained in the evidence he filed in response to the Trustee’s application saying:-
“Only records I have are sales invoices, purchase invoices and bank statements. These were all provided to OR on 23/9/14. I do not have any books whatever they are”.
Mr Keely’s case on appeal was that in the light of this, and in the light of the fact that on 26 May 2015 he had suggested that the Trustee write to him by 2 June 2015 “to clarify all outstanding matters” (in which event Mr Keely would “have [the] ability to allocate some time to responding between 2/6/15 and 4/7/15”) that the suggestion that he had failed to comply with his statutory obligations was unfair. I enquired of him Mr Keely whether he could point to a single letter in the two files of documents he produced for the appeal which said “Thank you for your letter. Here is what you want”. But he could not do so.
In the light of this material the Trustee spelled out in a letter dated 21 July 2015 precisely what he wanted in relation to disclosed bank accounts, the discovered AIB accounts, the income which Mr Keely had revealed, his tax records, and the telephone / broadband bills which he claimed as part of his expenditure. This was in essence the documentary material which lay behind Mr Keely’s answers to the Questionnaire and assertions in correspondence. The Trustee wanted original documents. Mr Keely’s reply of 2 August 2015 characteristically said this request was “unreasonable” and “not workable”, referred to the authority he had given to the Official Receiver, referred to the computer issues which he faced, told the Trustee to obtain information from the Official Receiver, and said that he had no time available in August or early September to deal with anything.
In my judgment the District Judge was entitled to find and to hold that Mr Keely was in breach of his statutory obligations, having failed to do all that could reasonable be done to discharge his duties. A clear message must go to those who are made bankrupt that it is not sufficient to say “My computer is broken. I have lost some of my records. Others of my records are in store and I’m not sure where they are because other people can move them”. It is the duty of the bankrupt to provide the information which a trustee reasonably requires to discharge his duties to the creditors i.e. proper records (and in the absence of proper records, sufficient information supported by such material as is available) to enable the trustee to identify and take into his control all available assets and to identify all sources of potential benefit for creditors. It is the duty of the bankrupt to provide the material that is reasonably required for that purpose (whether the trustee can identify specific documents or not).
The District Judge next held that Mr Keely had failed to comply with reasonable requests to afford access to the Property. The evidence before him disclosed that on 3 March 2015 the Trustee had referred in a letter to the necessity for Mr Keely to provide access for a valuation agent so that an inspection of the Property could be carried out and a valuation made. The absence of a response to that letter lead to a further request from the Trustee on 25 March 2015. There was no response to this reminder. On 8 May 2015 the Trustee informed Mr Keely that if he did not receive by 4pm on 20 May 2015 a date upon which his agent could gain full access to the Property then the Trustee considered that he had no option but to apply to the Court for an order for possession. Mr Keely says that his post collection arrangements meant that he did not receive this letter until 20 May itself, on which day he responded by fax explaining that he was only available on Friday afternoons on 6-8 weeks’ notice. He suggested 19 June 2015 at 4.30pm (requiring the Trustee to provide written confirmation of that date within 7 days).
But on 26 May 2015 he cancelled that appointment (because, he said, it clashed with a hospital appointment) and offered either 3 or 4 July at 4.30pm (i.e. the day before or the day of his potential automatic discharge). Even at that point he was unable to say which of those two days he would be available and said that he needed to confirm. By 18 June 2015 he was able to state that his only available slot was 4 July at 4.30pm for 20-30 minutes. When the Trustee indicated that he really needed access before 1 July Mr Keely said that he would be available for a surveyor’s visit on Sunday 28 June at 7.30am for 20 minutes: alternatively between 4.30pm and 4.50pm on 4 July (the date of his potential discharge).
When I enquired of Mr Keely at the hearing of the appeal what lay behind this extraordinary level of non-availability Mr Keely said:-
“I was trying to sort out the time. I was committed for weekends. I had arranged to do certain things- voluntary work. I did some voluntary work helping a sick friend’s mother. I was studying for exams. I seemed to have commitments in my diary I had been working towards for a long time”.
On 2 July 2015 (and so after the suspension application of the Trustee) Mr Keely confirmed an appointment from 4.30pm to 4.50pm on 4 July. The e-mail he sent from Hale Library at 12.36pm said:-
“Please provide surveyor name, company name, that he will bring a letter from Bell Advisory addressed to his company, confirming survey and time and that he will provide two separate photo IDs i.e. both driving license and passport, all of which I will require to see, prior to entry. Please ensure all these details are confirmed in writing, to above address, despatched to catch first class 5.30pm post on Thursday 2 July, so receipted by C Whyte no later than Friday 3rd July 15”.
When the survey took place the surveyor was not in fact allowed access to all areas. There was one area which Mr Keely explained was locked and that the key was “with another party”.
In my judgment the District Judge was on this material perfectly entitled to find and hold that Mr Keely was in breach of his statutory obligations: on any objective view he had not done all that could reasonably be done to enable the Trustee to ascertain the value of the principal asset in the bankruptcy estate. He had simply prioritised his own personal arrangements and self-evidently sought to exert control over the administration of his affairs. He completely overlooked that the Property was in fact vested in the Trustee for the benefit of the creditors in the bankruptcy estate. He seems to have regarded his bankruptcy as simply another front in his war with other members of his family.
District Judge Bever then considered that Mr Keely was in breach of his statutory obligations in that he had failed to correspond in good time with the Trustee and had imposed unreasonable terms. A sufficient flavour of the arrangements that Mr Keely had in place will be gathered from my consideration of the other grounds of the appeal. Assuming for present purposes that the arrangements arose out of genuine problems and were unrelated to the commencement of the bankruptcy, it must be recognised that the arrangements themselves were not the only reasonable responses to the postulated problems. One does not have to give exclusive access to the broadband connection to the lodger: Mr Keely could have provided an e-mail address. From the amount he spent on Court fees litigating issues relating to the Will Trust during his bankruptcy Mr Keely could easily have acquired a “pay as you go” mobile phone. Many ordinary citizens who are on “zero hours” contracts get by in life without requiring between four and ten weeks’ notice of any proposed appointment or request for information. Having made these arrangements Mr Keely unbendingly refused to depart from them for the convenient administration of his bankruptcy affairs because he chose to take that course. Making that choice is not doing all that can reasonably be done to comply with statutory obligations.
I will therefore uphold one of Mr Keely’s grounds of appeal but dismiss the others. The District Judge weighed the six breaches of obligation which he found to have occurred against the undoubted lateness of the Trustee’s application. In my judgment he ought to have weighed only five of the factors. I must therefore undertake the exercise again.
In my judgment the outcome is the same. It is right that although the Trustee was appointed in November 2014 the material before the Court suggests he only began making serious inroads into the administration of the bankruptcy estate in February 2015. But it appears from the papers that Mr Keely made challenges to the bankruptcy order itself (one of which continues) and sought an annulment: and in the light of that it is not possible to characterise the Trustee’s programme as culpably delayed. The lateness of the application itself ought to have been avoided, but probably derives from an over-optimistic hope that Mr Keely would comply with his obligations to permit access to the Property, an expectation that would have been dashed by Mr Keely’s fax of 24 June 2015 stating that the only available dates for inspection during the 10-week period ending mid-September 2015 were 7.30am on a Sunday morning or 4.30pm on the “discharge date”.
I would therefore reach the same conclusion as the District Judge on this issue and hold that the lateness of the application does not debar the Trustee from relief.
The District Judge then considered that a fixed-term and not a conditional suspension was required. I would reach the same view as the District Judge. A conditional order is appropriate where there are one or two specific shortcomings the significance of which can be appreciated and the outcome of which (if remedied) can be predicted. Where the proven breaches of statutory obligation are more in the nature of examples of thoroughgoing non-cooperation (as here) then a suspension for a period is appropriate. Mr Keely’s case plainly falls into the latter category.
The District Judge fixed the period of that suspension at 12 months. Even if one removes from consideration the failure to cooperate in the provision of the AIB statements a 12-month suspension is entirely appropriate looking at the breaches of obligation in the round. Indeed, if the timescale to which Mr Keely has worked during the bankruptcy is that he requires between 4 and 10 weeks’ notice of any significant activity (which must itself be undertaken on a Friday afternoon) he can hardly complain if what otherwise might be accomplished in the standard 12-month period of bankruptcy takes longer, and that the view is taken that in the public interest the bankruptcy should continue. Bankrupts with broken computers, disrupted postal arrangements and problematic communication will doubtless wish to bear this in mind when considering how they might overcome these challenges and discharge their statutory duties, and so enable the trustee to discharge his.
I therefore dismiss this appeal.
The skeleton argument of the Trustee invited me to make a Civil Restraint Order against Mr Keely (stating that two other applications had been dismissed as being “totally without merit”). Mr Keely is undoubtedly a difficult litigant, seeking to constrain the freedom the Court to list his cases for hearing, complaining about the listing arrangements, and determined to do things his own way. But the present circumstances do not justify making a CRO.
I canvassed the possible outcomes to this appeal at the hearing itself. In the light of the submissions then made I order the Mr Keely should pay the costs of the Trustee of this appeal, to be assessed on the standard basis in default of agreement (having considered all of the circumstances of the case but seeing no reason to depart from the general rule).
This judgment will be formally handed down at 10.30 am on 19 February 2016 at The Rolls Building.
Bankrupt’s Duty To Cooperate With Trustee
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