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BRIEFING PAPER

Number 5819, 3 December 2019

Bankruptcy: trustee's right of inquiry

By Lorraine Conway

Inside: 1. Role of the trustee 2. Trustee’s investigatory role 3. Trustee’s recovery of assets

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Contents Summary 3

1. Role of the trustee 4 1.1 Aims and statutory powers 4 1.2 Collection and realisation of assets 4

2. Trustee’s investigatory role 6 2.1 Powers of inquiry 6 2.2 Use of powers of inquiry 7 2.3 Warrant of arrest 8

3. Trustee’s recovery of assets 9 3.1 Transactions at an undervalue 9 3.2 Transactions at a preference 10 3.3 Court orders in respect of preferred or undervalued transactions 11

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3 Bankruptcy: trustee's right of inquiry

Summary Once a bankruptcy order has been made by the court, an official receiver or a private sector insolvency practitioner will be appointed trustee in bankruptcy (“the trustee”). As at the date of the order, the bankrupt’s estate vests in the trustee. The bankrupt’s estate essentially consists of all the assets which belongs to or is vested in the bankrupt at the commencement of the bankruptcy.

The main function of the trustee is to collect in and sell the bankrupt’s assets and to make payments to creditors in accordance with the hierarchy set out in the Insolvency Act 1986 (as amended). However, the trustee also has a duty to investigate the conduct and financial affairs of the bankrupt in the period leading up to the making of the court order to establish the causes of the bankrupt's failure. The trustee has wide powers of inquiry into the bankrupt’s dealings and property. The bankrupt also has a legal obligation to provide information to the trustee and attend at the trustee’s office as and when reasonably required.

As part of the trustee’s inquiry into the causes of the bankruptcy, the trustee can also ask third parties for information. Significantly, the trustee can apply to the court for an order for the private examination in court of the bankrupt’s spouse, partner or any other “connected” third party.

Individuals are often aggrieved to be asked to disclose detailed information and documentation about their financial affairs to a trustee or to a court in respect of another person’s bankruptcy. They question the legal basis on which the trustee in bankruptcy is entitled to investigate their financial affairs, and whether there should be evidence of a financial connection with the bankrupt before the trustee is entitled to examine their finances.

This briefing paper provides an outline of the right of inquiry of a trustee in bankruptcy. In the process, it also summarises the trustee’s general aims and statutory powers. The information contained in this paper applies only to England and Wales; Scotland has its own separate legal procedure for individual insolvency called “sequestration”.

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1. Role of the trustee

1.1 Aims and statutory powers As at the date of the bankruptcy order, the bankrupt’s estate vests in the trustee (see Box 1 below). Creditors can no longer pursue the debtor for payment; payment becomes the responsibility of the trustee.

Box 1: Vesting of bankrupt’s estate in his/her trustee in bankruptcy

Section 306 of the IA 1986:

(1) The bankrupt's estate shall vest in the trustee immediately on his appointment taking effect or, in the case of the official receiver, on his becoming trustee.

(2) Where any property which is, or is to be, comprised in the bankrupt's estate vests in the trustee (whether under this section or under any other provision of this Part), it shall so vests without any conveyance, assignment or transfer.

The bankrupt has 21 days from the date of the bankruptcy order in which to provide the trustee with information relating to his/her financial affairs, including a full list of their assets (including property, pensions, insurance policies etc.) and a full list of their debts.

The function of the trustee is to get in, realise and distribute the bankrupt's estate in accordance with the Insolvency Act 1986 (“the IA 1986”). In carrying out this function and in the management of the bankrupt's estate the trustee is entitled, subject to the IA 1986, to use his own discretion. In addition, the trustee has a duty to investigate the conduct and financial affairs of the bankrupt for the period leading up to his/her bankruptcy, to establish the causes of the bankrupt's failure and to ensure that no assets have deliberately been “put out of the reach” of creditors1 (see section 3 below.)

1.2 Collection and realisation of assets The “bankrupt’s estate” is the term used to describe that body of the bankrupt’s assets that pass to the trustee on his appointment for sale and distribution to the creditors (see Box 2 below). The bankrupt’s estate consists of all the property which belongs to or is vested in the bankrupt at the commencement of his/her bankruptcy (i.e. the date on which the bankruptcy order is made).

Box 2: The bankrupt estate

Section 283 of the IA 1986 defines the bankrupt’s estate as:

(a) All property belonging to or vested in the bankrupt at the commencement of the bankruptcy; or

(b) any property which is or is treated as being comprised in the estate by virtue of the provisions of the Act which relate to the insolvency of individuals.

1 Section 289 of the Insolvency Act 1986

A bankrupt is under a statutory duty to provide information to the trustee and to attend at the trustee’s office as and when reasonably required.

5 Bankruptcy: trustee's right of inquiry

Under section 436 of the IA 1986, the term “property” is defined widely, it includes:

...money, goods, things in action, and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property.

Although the “bankrupt’s estate” is defined by reference to the date of the bankruptcy order, the statutory definition of “property” draws into the estate future and contingent interests so long as they exist as proprietary interests at that date. It is clear there is no geographical restriction on the property which comprises the bankrupt’s estate.

It should be noted that property in the bankrupt’s estate is held by the trustee subject to the prior legal right of any person (other than the bankrupt) in such property. For example, a freehold interest in a property owned by the bankrupt falls within his estate and can be sold by his/her trustee for the benefit of creditors. However, if all or part of the property has been mortgaged, the property passes to the trustee in bankruptcy subject to the mortgagee’s interest and, importantly, subject to the mortgagee’s right to take possession even after the bankruptcy and to exercise all the other rights of a mortgagee (including the right of sale).

In certain circumstances, assets disposed of by the bankrupt before the making of the bankruptcy order can be reclaimed by the trustee for the benefit of creditors. Such disposals, known as “undervalue or a preference transactions”, are then treated as part of the bankrupt estate (see section 3 below).

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2. Trustee’s investigatory role

2.1 Powers of inquiry Once a bankruptcy order has been made, the appointed trustee has a statutory duty to investigate the bankrupt’s conduct and financial affairs to establish the causes of their failure. This may involve inquiries into the bankrupt's financial affairs over several years, although the trustee will usually concentrate on the period immediately before and after the bankrupt became insolvent.2

Under insolvency legislation, the trustee in bankruptcy has wide powers of inquiry into the bankrupt’s property and past dealings. The trustee can obtain accounts and other relevant documents. Importantly, the bankrupt has a statutory duty to cooperate with the trustee, to provide information and to attend at the trustee’s office as and when reasonably required.

In addition, the trustee has the statutory power to apply to the court for an order for the private examination in court of the bankrupt’s spouse, partner or any other “connected” third party (see Box 3 below).

Box 3: Trustee inquiry into the bankrupt’s dealings and property

Section 366 of the IA 1986 states: 366. (1) At any time after a bankruptcy order has been made the court may, on the application of the official receiver or the trustee of the bankrupt's estate, summon to appear before it -

(a) the bankrupt or the bankrupt's spouse or former spouse, (b) any person known or believed to have any property comprised in the bankrupt's estate in his possession or to be indebted to the bankrupt,

any person appearing to the court to be able to give information concerning the bankrupt or the bankrupt's dealings, affairs or property. The court may require any such person as is mentioned in paragraph (b) or to submit an affidavit to the court containing an account of his dealings with the bankrupt or to produce any documents in his possession or under his control relating to the bankrupt's dealings, affairs or property. (2) Without prejudice to section 364, the following applies in a case where -

(a) a person without reasonable excuse fails to appear before the court when he is summoned to do so under this section, or (b) there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding his appearance before the court under this section.

(3) The court may, for the purposes of bringing that person and anything in his possession before the court, cause a warrant to be issued to a constable or prescribed officer of the court -

(a) for the arrest of that person, and (b) for the seizure of any books, papers, records, money or goods in that person's possession.

(4) The court may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant be held, in accordance with the rules, until that person is brought before the court under the warrant or until such other time as the court may order.

2 Section 289 of the Insolvency Act 1986

The trustee in bankruptcy has wide powers of inquiry.

7 Bankruptcy: trustee's right of inquiry

The court’s power to hold a private examination is supplemented by section 367 of the IA 1986, which gives the court additional powers to make orders covering any matters which come to light as a result of such an examination. In particular, they provide for the court, on application by the person who seeks the examination (i.e. the trustee), to order delivery of property or the repayment of a debt (see Box 4 below).

Box 4: Section 367 of the IA 1986:

367. (1) If it appears to the court, on consideration of any evidence obtained under section 366 or this section, that any person has in his possession any property comprised in the bankrupt's estate, the court may, on the application of the official receiver or the trustee of the bankrupt's estate, order that person to deliver the whole or any part of the property to the official receiver or the trustee at such time, in such manner and on such terms as the court thinks fit. (2) If it appears to the court, on consideration of any evidence obtained under section 366 or this section, that any person is indebted to the bankrupt, the court may, on the application of the official receiver or the trustee of the bankrupt's estate, order that person to pay the official receiver or trustee, at such time and in such manner as the court may direct, the whole or part of the amount due, whether in full discharge of the debt or otherwise as the court thinks fit. (3) The court may, if it thinks fit, order that any person who if within the jurisdiction of the court be liable to be summoned to appear before it under section 366 shall be examined in any part of the United Kingdom where he may be for the time being, or any place outside the United Kingdom. (4) Any person who appears or is brought before the court, under section 366 or this section may be examined on oath, either orally or by interrogatories, concerning the bankrupt or the bankrupt's dealings, affairs and property.

2.2 Use of powers of inquiry It is clear that under section 366 of the IA 1986 any individual who is able to give relevant information about a bankrupt may be required to give evidence. The court may also require such individuals to produce any documents in his/her possession or under his/her control relating to the bankrupt. In making a court application under this section, it is not necessary for the trustee to show a “financial connection” between the bankrupt and the person to be summoned only that he believes that the person is “able to give information concerning the bankrupt or the bankrupt's dealings, affairs or property.”

Whilst an order for a private examination is a matter for the court’s discretion, it is important to note that the court is unlikely to make the order where it appears to be “vexatious or oppressive” (i.e. excessively harsh or burdensome) to the respondent. According to the Insolvency Service, where possible the trustee should seek to rely on voluntary co-operation and goodwill during his investigation. The trustee should only resort to court proceedings when absolutely necessary. The trustee should not threaten to apply to the court for a public or private examination of an individual where there is no intention to go through with that. Importantly, if the trustee successfully applies for an examination of an individual (other than the bankrupt) his/her costs are

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payable out of the bankrupt estate unless the court orders otherwise.3 It is therefore in the interests of the creditors that court proceedings are a “last resort”.

2.3 Warrant of arrest If a court order is made under section 366 of the IA 1986 and the individual named on the order fails to attend the summons on the appointed day without good reason, it is possible that the court could order a warrant for their arrest. Much would depend on the exact circumstances of the case.

3 Rule 9.6(3) of the Insolvency Rules 1986

9 Bankruptcy: trustee's right of inquiry

3. Trustee’s recovery of assets As outlined above, the trustee has a wide range of powers under the IA 1986 to investigate events which took place prior to the bankruptcy. If there is sufficient evidence, the trustee’s investigations may lead to the overturning of any undervalued transactions (or gifts) or preference transactions (see Boxes 5 and 6 below). Assets reclaimed by the trustee become part of the bankrupt estate and are ultimately for the benefit of creditors.

3.1 Transactions at an undervalue A transaction is at an undervalue if, prior to bankruptcy proceedings, a debtor transfers an asset (such as a house or a car) to an associate (i.e. a family member or friend) at less than its true market value (see Box 5 below).

Box 5: Transaction at an undervalue

The provisions relating to undervalued transactions are contained in sections 339, 341 and 342 of the IA 1986. Specifically, section 339(1)-(3) states: 339.(1) Subject as follows in this section and section 341 and 342, where an individual is adjudged bankrupt and he has at a relevant time (defined in section 341) entered into a transaction with any person at an undervalue, the trustee of the bankrupt's estate may apply to the court for an order under this section. (2) The court shall, on such an application, make such order as it thinks fir for restoring the position to what it would have been if that individual had not entered into that transaction. (3) For the purposes of this section and sections 341 and 342, an individual enters into a transaction with a person at an undervalue if –

(a) he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration. (b) he enters into a transaction with that person in consideration of marriage, or (c) he enters into a transaction with that person for a consideration the value of which, in money or money's worth, is significantly less than the value, in money or money's worth, of the consideration provided by the individual.

In effect, if the trustee has reason to think that assets have deliberately been “put out of the reach” of creditors, the trustee can examine the circumstances of the transfer. If the transaction was at a substantial undervalue the trustee can apply to the court to have the property sold and the equity realised for the benefit of all the creditors. Where an action is commenced by a trustee on or after 15 September 2003, he must obtain sanction of the court or creditors’ committee.

To successfully challenge a transaction, the trustee must be able to show that the transaction was at made an undervalue and that it occurred during the 5 years prior to the day that the bankruptcy petition was presented. If the transaction was entered into in the period of 2 to 5 years prior to the presentation of the petition, the individual

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must either have been insolvent at that time or to have become insolvent as a result of the transaction. The onus of proving insolvency is on the trustee except in relation to an “associate”. Where an individual has entered into an undervalue transaction with an associate, it is presumed that the individual was insolvent at the time.

Under section 339(3) of the IA 1986 any transactions entered into in the 2 years prior to the date of the bankruptcy order are voidable, regardless of whether or not the individual was solvent, unless the transaction was for valuable consideration and entered into in good faith.

3.2 Transactions at a preference

Box 6: Transactions at a preference: section 340 of the IA 1986:

The provisions relating to preferential transactions are contained in sections 340, 341 and 342 of the IA 1986. Specifically, section 340 states: 340. (1) Subject as follows in this and the next two sections, where an individual is adjudged bankrupt and he has a relevant time (defined in section 341) given a preference to any person, the trustee of the bankrupt's estate may apply to the court for an order under this section. (2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that individual had not given that preference. (3) For the purposes of this and the next sections, an individual gives a preference to a person if –

(a) that person is one of the individual's creditors or a surety or guarantor for any of his debts or other liabilities, (b) the individual does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the individual's bankruptcy, will be better than the position he would have been in if that thing had not been done

(4) The court shall not make an order under this section in respect of a preference given to any person unless the individual who gave the preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in sub- section (3)(b) above. (5) An individual who has given a preference to a person who, at the time the preference was given, was an associate of his (otherwise than by reason only of being his employee) is presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in subsection (4). (6) The fact that something has been done in pursuance of the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of a preference.

A preferential transaction is a payment or other transaction made by a debtor which places a creditor in a better position than they would have been in otherwise (see Box 6). For example, the bankrupt may pay a large debt owed to his son before other creditors. A trustee in bankruptcy may apply to the court for an order to recover sums or set aside (i.e. cancel) a transaction which is found to be a preference, provided the transaction took place within a period of either 2 years

For the purposes of the IA 1986, a person is an ‘associate’ of the bankrupt if they are a spouse, a relative, or the spouse of a relative.

11 Bankruptcy: trustee's right of inquiry

where the creditor is a “connected person” (i.e. a family member) or 6 months in all other cases.

3.3 Court orders in respect of preferred or undervalued transactions

Section 342(1) of the IA 1986 contains examples of the possible orders the court may make, in relation to both a transaction at an undervalue and a voidable preference. However, on consideration of the evidence, the court has discretion to make whatever order it thinks fit or to dismiss the trustee’s application altogether.

A “bona fide purchaser acting in good faith” is protected by the IA 1986. In a nutshell, a bona fide purchaser is one who buys the property of another without notice that some other third party has a right to, or interest in, such property and, importantly, pays a full and fair price.

It follows from this that any person who was the other party to a transaction at an undervalue or received a preference will not be protected if he/she had notice of the relevant surrounding circumstances (i.e. the fact that the transaction was at an undervalue or preference) and of the relevant proceedings (i.e. pending or actual insolvency). If a court order is made to overturn an undervalue or preference transaction, the reclaimed assets will form part of the bankrupt estate. This means that the assets can be realised, and the proceeds distributed to the creditors.

A bona fide purchaser acting in good faith

BRIEFING PAPER Number 5819, 3 December 2019

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