Examination order under CPR Part 71 made against undischarged bankrupt (Hijazi v Yaxley-Lennon)

25 Mar 2022

Dispute Resolution analysis: Master Dagnall has ordered a prominent far-right political activist to attend court and give evidence as to his financial means under CPR Part 71, notwithstanding the fact that he is now an undischarged bankrupt.

Hijazi v Yaxley-Lennon [2022] EWHC 635 (QB)

What are the practical implications of this case?

This decision appears to confirm that an examination order under Part 71 of the Civil Procedure Rules may be sought and obtained notwithstanding the fact that the judgment debtor has been made bankrupt. The bankruptcy is relevant as a result of the fact that the judgment debt upon which the application was premised is a debt provable in the bankruptcy. Under section 281 of the Insolvency Act 1986, the bankrupt is released from all bankruptcy debts (subject to exceptions which do not cover the judgment debt here) when he is discharged from bankruptcy. Furthermore, section 285 of the Insolvency Act 1986 provides that a stay may be (and usually is) imposed upon the enforcement of debts through the usual legal processes. The trustee in bankruptcy is correspondingly empowered by a range of provisions to take steps to establish the existence and whereabouts of assets of the bankrupt. The Court recognised, however, that Part 71 is not itself an enforcement process but is ancillary to enforcement. Where legitimate purposes can be identified, an examination order under Part 71 may still be appropriate. Such circumstances are likely, however, to be fairly rare and any order may will, as happened here, need to be mindful not to impact upon the rights and obligations set out in the Insolvency Act 1986.

What was the background?

The Claimant obtained various judgments against the Defendant, a prominent far-right political activist. Materially for present purposes, one such judgment included a costs order in the Claimant’s favour. Although the chronology is not entirely clear from the judgment, it is apparent that two events occurred after judgment was obtained. One event was that the Defendant was made bankrupt on his own application. The other is that the Claimant applied under CPR Part 71 for an order that the Defendant attend court to provide information about his means. One issue which arose by the time the application was heard by Master Dagnall was as to whether he was being asked to continue an existing order which had already been made under CPR r.71.2 or whether he was being asked to make such an order for the first time. This issue appears to have been the product of some administrative issues in a complex procedural history rather than any substantive legal issues. The more significant issue, however, was as to whether the Court had jurisdiction to make an order under CPR Part 71 in circumstances where the judgment debtor is bankrupt, given the powers afforded to the trustees in bankruptcy in the Insolvency Act 1986 and the related question of whether the Court should, in its discretion, make such an order in light of those same factors.

What did the court decide?

At the conclusion of a careful and detailed judgment in which a number of authorities and factors were considered, the Court made what it described either as a continuance of a protective examination order or, alternatively, a de novo examination order. The order was to make clear, however, that it is subject to the Defendants bankruptcy and was not to involve or require the Defendant to do anything inconsistent with his obligations under the bankruptcy. An example was given that where, under section 312 of the Insolvency Act 1986, the Defendant was under an obligation to pass documents to the trustee, any obligation to provide them to the Court would be subject to his prior obligation to provide them to the trustee. The Court made this order for the following reasons. (1) The trustee appeared to be content for the Part 71 procedure to be followed and did not seem to be seeking to engage their own process. (2) The civil proceedings were commenced and the judgment debt created prior to the bankruptcy. It was not an attempt by the Claimant to take over an existing bankruptcy process. (3) The Part 71 process might reveal that the Defendant had sufficient assets that it can be said he was not, in fact, insolvent as claimed to the adjudicator. This might support an application to set aside the bankruptcy. (4) Information obtained via the Part 71 process could be passed to the trustee to assist them in their work. (5) It might permit an application by the Claimant under section 423 of the Insolvency Act 1986, a route which is not merely confined to the trustee. In light of all these factors, the Court was satisfied that there were legitimate purposes for seeking the order and there is no jurisdictional bar to making the order.

Case details

  • Court: High Court, Queen’s Bench Division, Media and Communications List
  • Judge: Master Dagnall
  • Date of judgment: 3 February 2022

Article by Phillip Patterson – first published by LexisNexis


Phillip Patterson

Call: 2008


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