England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
HH Judge Norris QC
BM02D01373

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th November 2004

Lord Justice Carnwath:

1. This is the judgment of the court, to which the other members have contributed.

Background

2. The first respondent, Baskinder Ram (“the husband”), was the subject of a bankruptcy order made on 17^th September 1998, on a petition presented by the Commissioners of Inland Revenue on 28^th May 1998. The principal creditors in the bankruptcy were four: Barclays Bank in respect of an overdraft in the sum of £15,500, HM Customs and Excise in the sum of £10,000, the Inland Revenue in the sum of £101,834 and a firm of accountants which was owed some £2,900. In his initial statement of affairs, he disclosed that he owned a property at Longmeadow Close, the matrimonial home, which he shared with his wife, Gita Ram, the appellant (“the wife”). He also disclosed that two or three years before he had had a quarter-share in the family home at 11 Westfield Road, which he said had since been sold to his father. On the basis of that information the trustee in bankruptcy (“the trustee”) began proceedings against the wife in relation to the matrimonial home.
3. The wife was less willing than the trustee to accept at face value the disposal of the quarter-share in 11 Westfield Road. This disposal had been made on 19th February 1996, by the husband to his father and two of his brothers. On 10^th October 2003, she applied under s 423 of the Insolvency Act 1986 for an order that the transaction be set aside as a transaction at an undervalue intended to defeat creditors. That application (together with a similar application made by the trustee immediately before the hearing) came before His Honour Judge Norris QC on 18^th February 2004. The two brothers, Solinder and Monder Ram, appeared by counsel, but did not oppose the setting aside of the transaction. The husband did not appear.
4. The judge found, as indeed was agreed by the parties who appeared before him, that the relevant transfer had been at an undervalue and that the substantial purpose of the transfer had been to put assets beyond the reach of persons who had a claim to them, in particular the Inland Revenue. It is unnecessary to review the reasoning which led to this conclusion, since it is not in issue before us. The real dispute before the judge was as to the form of the order to be made in respect of the husband's quarter-share of 11 Westfield Road. Accepting the trustee's submissions, he made an order vesting it in the trustee.
5. He recorded that at the time of the hearing the current deficiency was of the order of £309,000, consisting of some £73,000 in respect of costs and fees, £165,000 in respect of creditors' claims, and £72,000 in respect of statutory interest. Since then the liabilities (in particular in respect of interest and costs) have been increasing. We were told that the current total is of the order of £411,000.
6. He made no findings as to the value of the various assets. In addition to those already noted, mention should be made of another asset not disclosed in the husband's statement, his one-eighth share in the estate of his late father. In his skeleton argument for the wife, Mr Duckworth suggests that the approximate value of the husband's estate is £675,000. This includes his interest in 34 Longmeadow Close, three-eighths of the value of 11 Westfield Road net of sale costs, and a one-third share of his father's residuary estate consisting of some commercial properties in Birmingham. The trustee in bankruptcy puts the “available pool of assets” at around £500,000. The precise figures are not material to the issues we have to decide.
7. Reference must also be made to separate matrimonial proceedings, initiated by the wife in May 2002. They included a petition for divorce and an application for ancillary relief. A maintenance order was made in her favour in May 2003. Following a hearing before Bennett J in November 2003, it was ordered that her application under s 423 should be heard first in the Chancery Division, and an order was made freezing the husband's assets.
8. Following Judge Norris' decision on that issue, the wife's application for ancillary relief came before Hedley J on 4^th March 2004, when an order which (as summarised by Mr Duckworth) required the husband:

i) to transfer to the wife the matrimonial home at 34 Longmeadow Close free of mortgage;

ii) to pay her a lump sum of £150,000 within 56 days;

iii) to pay all arrears under the maintenance order dated 17 March 2003 (amounting to £44,000) and to pay ongoing maintenance at £2,000 per month until i) and ii) were implemented;

iv) to pay all her matrimonial costs (£66,000).

The order records that it was made “upon hearing” counsel for the wife and also Mr Martin Lee, solicitor for the trustee in bankruptcy. However, there is some dispute as to what (if any) part Mr Lee took in the proceedings. For reasons which will become apparent, we think it unnecessary to resolve the point.

9. On the basis of that order, together with the costs of the section 423 proceedings (assessed at £11,000 by Judge Norris, and directed to be paid in the course of bankruptcy administration), Mr Duckworth puts the total claim of the wife at some £420,000 plus interest.

The Insolvency Act 1986

10. The 1986 Act and the rules under it provide a comprehensive code dealing with corporate and personal insolvency. For the present case, the relevant provisions are those relating to the functions of the trustee in bankruptcy (“the trustee”) (Part IX Ch IV), and the special provisions (not confined to cases of insolvency) to counteract “debt avoidance” (Part XVI). The general function of the trustee is to “get in, realise and distribute” the bankrupt's estate, for which purpose he is specifically authorised “to use his own discretion” (s 305(2)). Immediately on his appointment taking effect, the bankrupt's estate automatically vests in him (s 306). The detailed provisions relating to his powers are not material to this appeal.
11. Section 423 contains provisions designed to counteract transactions at an undervalue, where the court is satisfied that the purpose was to put assets beyond the reach of claimants. Where the debtor has been adjudged bankrupt, the application may be made by the trustee, or by “a victim of the transaction” (s 424(1)(a)). A “victim” of the transaction is “a person who is, or is capable of being, prejudiced by it” (s 423(5)). (We were told that the wife was given leave by Judge Norris to proceed on this basis on 17^th December 2003.) Such an application is treated as made “on behalf of every victim to the transaction” (s 424(2)).
12. Where the requirements of section 423 are met (as was found in this case) the court's powers are defined by section 423(2); it may make “such order as it thinks fit” for:

“(a) restoring the position to what it would have been if the transaction had not been entered into, and

(b) protecting the interest of persons who are victims of the transaction.”

13. Section 425 provides (“without prejudice to the generality of section 423”) examples of orders which may be made, including one to:

“(a) require any property transferred as part of a transaction to be vested in any person, either absolutely or for the benefit of all the persons on whose behalf the application is treated as made;”

14. In Chohan v Saggar [1994] 1 BCLC 706, 714 c-e, Nourse LJ explained the effect of section 423(2):

“The object of ss 423 to 425 being to remedy the avoidance of debts, the “and” between para (a) and (b) of 423(2) must be read conjunctively and not disjunctively. Any order under this section must seek, so far as practicable, both to restore the position to what it would have been if the transaction had not been entered into and to protect the victims of it. It is not a power to restore generally, but in such a way as to protect the victims' interests; in other words, by restoring assets to the debtor to make them available for execution by the victims. So the first question the judge must ask himself is what assets have been lost to the debtor. His order should, so far as practicable, restore that loss.”

Matrimonial proceedings and bankruptcy

15. Before coming to the grounds of appeal, it is necessary to say something of the treatment of matrimonial orders in the insolvency code. Mr Duckworth refers to what he calls “the uneasy relationship” between bankruptcy and matrimonial proceedings. He submits that the “central issue” in the appeal is:

“…whether the claims of creditors should be allowed to prevail, both procedurally and substantively, over those of a wife, or whether she should be at least 'level-pegging'.”

He invites the court to look at “creative solutions” to achieve a fair result.

16. The immediate obstacle to Mr Duckworth's ambitions is found in rule 12.3 of the Insolvency Rules 1986. This provides as follows:

“(1) … all claims by creditors are provable as debts against… the bankrupt, whether they are present or future, certain or contingent, ascertained or sounding only in damages.

(2) The following are not provable:-

(a) in bankruptcy, … any obligation arising under an order made in family proceedings…”

Thus on the clear wording of the rules, the wife's claim in the matrimonial proceedings, even after the order made by Hedley J, was not a “provable debt” for the purposes of the bankruptcy.

17. This rule has its counterpart in section 281(5) of the Insolvency Act 1986. This provides that, contrary to the ordinary rule that discharge of the bankrupt releases him from all his bankruptcy debts, he is not released (apart from any direction of the court) from such debts arising under orders in family proceedings. For obvious reasons, however, the right to pursue the discharged bankrupt in an uncertain future may prove much less valuable in practice than a right to prove against known assets in the bankruptcy.
18. Mr Duckworth describes the rule as anomalous. In that, he gains support from judicial statements of high authority over more than a decade. In Woodley v Woodley (No 2) [1994] 1 WLR 1167, CA, Balcombe LJ said:

“I cannot leave this case without saying something about the effect of r 12.3 of the Insolvency Rules 1986. Before those rules came into force orders for periodical payments were not provable in bankruptcy… whereas an order for a lump sum was provable…. That position is understandable. However r 12.3(2)(a), by making any obligation arising under an order made in family proceedings, ie including a lump sum order, not provable, has changed that position. Whether it was the intention of those who drafted the 1986 rules to bring about this change I know not. It may be that it was considered that as a debt arising from an order made in family proceedings is not released upon the discharge of the bankrupt (s 281(5) (a) of the 1986 Act) therefore it should not be provable. However there is no necessary or logical link between the provability of a debt and its release on discharge. In some cases there is such a link see, eg a fine imposed for an offence which is not provable under r 12.3(2)(a) and is not released on discharge under s 281(4). On the other hand a liability to pay damages in respect of personal injuries is a provable debt in bankruptcy, not being the subject of any exclusion under r 12.3, but is not released on discharge: s 281(5)(a). It seems, therefore, that any link between provability and release on discharge is a matter of policy and I can see good policy grounds for saying that a lump sum order made in family proceedings should (like damages for personal injuries) be both provable in bankruptcy and yet not be released on discharge.

I invite the Insolvency Rules Committee to consider whether a lump sum order made in family proceedings should be provable in bankruptcy as it was before the 1986 rules came into force. If it were provable, then that would be the appropriate route for the creditor to follow, since the procedure by way of judgment summons would then be barred by s 285(3) of the 1986 Act (see Smith v Braintree DC [1990] 2 AC 215). In the present case, the wife could have proved in the husband's bankruptcy and no doubt would have sought to encourage the trustee to take the steps open to him to discover what had happened to the husband's assets; there would have been no need for the present unhappy saga to have occurred.”

19. Similarly, in Re Mordant [1996] 1 FLR 334, 338-9 Sir D Nicholls V-C commented:

“Since the wife is unable to prove in the husband's bankruptcy, the position… is that the husband's trustee must use the £385,000 in paying the trustee's expenses and remuneration and, subject to that, he must distribute the money between the husband's creditors but excluding the wife. This would mean there would be a substantial surplus available to be returned to the husband. No doubt the wife could take steps to intercept the surplus. Even so, the result would be that the unsecured creditors would be paid in full, save for the wife. She would not receive the whole of the lump sum ordered by the judge. Indeed, far from even sharing equally with the husband's other creditors, she would rank behind them all. She would receive the crumbs from the husband's table left unconsumed by his other creditors. This is the consequence of r 12.3(2)(a) …”

He noted that an attack on the rule had been rejected in Woodley and added:

“I feel bound to say that the exclusion of an obligation to pay a lump sum arising under an order in family proceedings from proof as a debt in bankruptcy is a matter which would bear re-examination as a matter of urgency…”

20. Unfortunately, “urgency” in this field is a relative concept. It was not until May 2004 (following a detailed report of a sub-committee of the Insolvency Court Users' Committee) that a consultation paper was issued by the Insolvency Service on the subject. The paper referred to calls for reform by “eminent members of the judiciary and those with experience in insolvency and family law”. It called for views on the suggested change to the rules to enable lump sum awards and costs awarded in family proceedings to be provable, while retaining the statutory rule that they should not be released on discharge from bankruptcy. If decided upon, the aim would be to bring the change into effect in March 2005. The results of consultation have not yet been published.
21. This history supports Mr Duckworth's submission that the present law is anomalous and ripe for reform. It is striking, however, that over the decade since the problem was first highlighted judicially, there has been no suggestion that it could be overcome by “creative solutions” of the kind proposed by him.

The appellant's submissions

22. Mr Duckworth submits before us, as he did before the judge, that the appropriate order would be one re-vesting the quarter share in the husband. In his skeleton argument he explains the intended consequence of such an order:

“This will in effect be held to the order of the court under the terms of the freezing order extended by Hedley J on 4.3.04. There will then be a further hearing before the High Court judge, or HHJ Hindley QC as the deputed s 9 judge, to determine how the 'pot' of £675K (less estate creditors) can be fairly divided between all s 423 'victims', which for these purposes includes both W and the bankruptcy creditors.

Thus a judge may decide for instance that—

(i) trustee be paid in full, and wife take the remainder; or

(ii) all parties recover pro rata; or

(iii) wife be paid in full, but trustee accepts a discount on account of his unaccountable delay and inertia since 1998, compared with wife enterprise and persistence in this litigation, for which she deserves some reward.”

23. His supporting submissions raise issues under the Insolvency Act, and under the European Convention of Human Rights, as applied by the Human Rights Act 1998.
24. As to the former, he submits that section 423 provides an “autonomous jurisdiction outside bankruptcy”, the object of which is the protection of “victims”, and which gives the court a wide discretion for that purpose, including a power to vest property in “any person”. The section, he says, has a “twin aim”: that is, both to restore the position as it would have been, and to protect the interests of victims persons who are victims of the transaction. The judge's order, he says, failed to reflect that twin aim, because it focused on paragraph (a) of the subsection to the exclusion of (b):

“By vesting the property in the trustee, Judge Norris QC effectively shut the wife out from the fruits of her application, leaving her to fight for the crumbs. He did nothing that specifically protected her interests as a victim of this transaction. This was not a proper exercise of the s 423 discretion, which requires a balance to be struck….”

He relies on HM Customs & Excise v MCA [2002] EWCA Civ 1039, [2003] 2 WLR 210, as showing (in a different context) that there is no reason to give one statutory scheme precedence over the other.

25. Under the Human Rights Convention, Mr Duckworth submits that the wife's rights, or prospective rights, in the matrimonial proceedings are property rights protected by Article 1 of the First Protocol to the Convention. He makes two points under the Convention:

i) Fair balance. Even accepting that the bankruptcy regime, and the trustee's actions under it, are an interference with the wife's rights under Article 1, it is necessary under Convention law to achieve a “fair balance” between the interests of creditors and the protection of the wife's fundamental rights. In this connection, Mr Duckworth submits:

“…. delay by one party is an important factor in striking the balance: Beyeler v Italy App 33202/96, judgment 5.1.00 paras 115–120, where reference was made to the Italian government's failure to act “in good time, in an appropriate manner and with the utmost consistency” in exercising a legal right of pre-emption over a van Gogh painting. Here the trustee has acted with neither expedition nor consistency.”

ii) Discrimination. He relies on Article 14 of the Convention which provides that the enjoyment of the convention rights, including property rights protected by Article 1, must be secured without discrimination –

“on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

He submits that, insofar as the Judge's order accords priority to bankruptcy creditors over the wife's property rights, it discriminates unlawfully against her.

26. We say at once that the first Convention point, (to the extent that it is directed to alleged failings by the trustee) seems to us wholly unarguable. Even if the a trustee in bankruptcy is to be treated as a “public authority” for the purposes of the Human Rights Act (a novel proposition to us, for which we were provided with no authority), before the judge there was no allegation against the trustee of breach of the Convention, and he made no finding on it. Even if he had, this might at most give a remedy against the trustee. It is wholly unclear to us how it could affect the wife's priority as against the other creditors.
27. The other Conventions points are considered further below.

Discussion

Insolvency Act

28. In our view, section 423 cannot bear the reading Mr Duckworth seeks to put on it. Without disrespect to his ingenious argument, we can see no answer to the judge's reasoning, which we gratefully adopt. He said:-

“First, the first limb of S. 424(2) requires the court to restore the position to what it would have been if the transaction had not been entered into. Mr Duckworth's order does not restore the position; it modifies the position. It gives the wife property to pursue in her matrimonial claim which is protected from the bankruptcy regime which affects the remainder of the husband's property.

Secondly, the second limb of S. 423(2) requires the court to take into account the protecting of the interests of the persons who are victims. Those persons are the wife and the creditors. As between the wife and the creditors the section does not require the court to reward the virtuous but to protect victims.

Third, by making the order I propose I am putting the wife back in the position in which she would have been had the transaction not occurred, that is that she is able to make a claim against the surplus. Any other order, in particular that proposed by Mr Duckworth, would put her not in the same position but in a better position. She was at the time of the transaction, and is now, a person who may have a claim against the bankrupt. That is reflected by restoring the property to the trustee. The restoration of the property may lead to a surplus in the bankruptcy estate. It will, in any event, relieve pressure on the matrimonial home, which has hitherto been the trustee's prime target. In that way her claim is protected but to go further would do more than to restore or protect her interests but to advance them.”

29. Thus, if the property had not been disposed of it would have formed part of the bankrupt's estate, and it would have devolved to the trustee in the normal way. The wife's rights are protected by safeguarding her interest in the surplus, which is the only right she is given by the insolvency code. Mr Duckworth attempted to avoid that result by asking us to infer that, if the property had not been disposed of, there would have been no bankruptcy. That is a hopeless submission. Even if (which we doubt) section 423(2) permits speculation of that kind, there is no evidence to support it in this case. It assumes that, if he had not disposed of the property, the husband would have used it to meet the Revenue's claim. From what we know of the husband's dealings with his creditors, that seems a highly implausible suggestion, but in any event it was not put to the judge and no finding was made on it.

The Convention

30. The issues under the Convention were not ventilated before the judge, nor in the original Notice of Appeal. An amendment to the Notice of Appeal however stated:

“It is contrary to ECHR Art 14 (Discrimination) and Protocol 1, Art 2 (Protection of Property) to construe s 423 in such a way as to give the trustee an automatic priority (No separate relief is however sought under this head)”

31. The note in brackets indicated, as Mr Duckworth confirmed in argument, that no relief was sought under either section 3 or section 4 of the Human Rights Act 1998. Mr Duckworth said that he did not contend, other than inferentially, that the legislation itself was not Convention compliant. Rather, it was the judgment of Judge Norris that had failed to acknowledge or respect the wife's Convention rights. We allowed Mr Duckworth to develop this argument even though he had no formal permission to do so, and despite the argument coming before the court as a late amendment, and in very brief form.
32. First, what was the wife's property right in the terms of article 1 of the First Protocol? Mr Duckworth argued that at the date of the judgment under appeal it was the wife's expectation that in the family proceedings she would be awarded “a defined share in the matrimonial pot”. For the proposition that a future interest counts or can count as property under article 1, Mr Duckworth relied on Inze v Austria (1987) 10 EHRR 394. That case did not, however, concern a purely future right, and certainly not a mere expectation, as the ECtHR recognised in paragraph 38 of its judgment, when distinguishing the earlier case of Marckx (1979) 2 EHRR 330. The court in paragraph 50 of its judgment in the latter case appears to have held that future rights do not fall under article 1, and we have not been made aware of any authority, including Inze, that clearly displaces that exclusion. By the date of the appeal, the wife had certainly acquired rights as opposed to expectations, as she is now the beneficiary of an actual order in the matrimonial proceedings. It would however seem difficult to set aside or modify the judge's judgment on Convention grounds if, at the time of delivery of the judgment, the party had no Convention rights that the judge, or the state, was bound to protect.
33. There is however a more fundamental reason why in this case the wife cannot rely on article 1 taken in isolation. Article 1

“shall not in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”

34. The ECtHR affords to states a wide margin of appreciation in implementing social policies, and will respect the national legislature's judgement as to what is “in the public interest” unless that judgement be manifestly without reasonable foundation: James v United Kingdom (1986) 8 EHRR 123. In our case, the judge's conclusion was in accordance with (domestic) law, a law that, although criticised, cannot be said to be so manifestly without foundation that the Convention obliges domestic courts either to ignore it or, as is submitted in this case, to take a course under it other than that which the law requires. Article 1 by itself accordingly does not assist the wife in this case.
35. At first sight a somewhat more promising line of approach for the wife is to be found in the combination of article 1 of the First Protocol and article 14. We would be prepared to accept that the wife's contingent or future interest in the matrimonial property sufficiently falls within the ambit of the Convention's concern for property rights as to engage the jurisprudence of Article 14, as understood in Petrovic v Austria (1998) 33 EHRR 307, and by the House of Lords in Ghaidan v Godin-Mendoza [2004] 3 WLR 113[10]. The wife however suffers in this case not because of her gender, or any other straightforward category in respect of which discrimination is forbidden, but because of the rules of national law affecting the beneficiary or potential beneficiary of a matrimonial order. It is the fact that she holds such an order (a position that is gender-neutral) that confers on her a “status” for the purposes of article 14.
36. It is that consideration that produces serious difficulties in deciding whether there has been “discrimination” against the wife. In most discrimination cases, the claimant seeks to exercise a right or opportunity, and is barred from it by a criterion (race, gender, nationality and so on) which is unconnected with that right. Indeed, it is that lack of connection between the criterion and the right which founds the lack of relevance of the criterion that is the essence of discrimination. But in our case, the exclusion of obligations under orders in family proceedings (and other specified debts) from proof in the bankruptcy is part of the legal structure under which she asserts her original right. At the least, therefore, much more careful analysis will be required in that case than would be required in a case involving race or gender before it could be confidently concluded that the arrangements are indeed discriminatory.
37. These problems can be illustrated by the relief sought in this case. The argument has to be that, as rule 12.3 prevents proof of the wife's claim in the bankruptcy, any order in bankruptcy touching the wife's interest must discriminate against her because of the sort of creditor that she is. However, what was sought in the present case was not the correction of that imbalance by the assimilation of the wife to the position of other creditors. That was because rule 12.3 cannot be attacked on domestic law grounds and, as we have seen, any direct attack upon it on Convention grounds was disclaimed, and might in any event be difficult to mount, at least on the material presently before the court. Rather, the appellant wishes to use the machinery of section 423 to transfer the asset involved in the transaction that defrauded creditors out of the bankruptcy and into the matrimonial jurisdiction. It would be artificial not to recognise that such an order would be likely to produce an outcome that favoured the wife over the other creditors. By refusing such an order, the judge did not discriminate against the wife but, as he said in his third point in para 65 of the judgment, put the wife back in the position in which she would have been if the transaction that founded his jurisdiction had not taken place. It is very difficult to see how that solution discriminated against the wife.
38. The wider question, of whether the bankruptcy rules themselves are discriminatory in the relevant sense against matrimonial creditors is not before us and, as we have indicated, it is an issue that is far from straightforward. In another case that issue may well merit consideration, but it will require full exploration of the questions mentioned above, and of the policy informing the bankruptcy rules, before it can be said that those rules are sufficiently unreasonable to be branded as discriminatory.

Conclusion

39. In conclusion, we repeat the hope that the review of rule 12.3, called for by senior judges over more than a decade, should now finally be brought to a conclusion, and appropriate amending legislation be put in place. This, however, is of no assistance to the appellant, whose appeal must be dismissed.