Re Hunt (2008) (Preston county court, 12/6/08)
Mr Hunt suffered from Huntington's disease and had shut himself off from the world, in his home; he had ignored demands for payment of council tax; the court (not knowing his condition) made a bankruptcy order, then an order that he be arrested and brought before the court for failure to attend for public examination. (1) Under rules 7.43-7.44 Insolvency Rules 1986 (since amended to reflect the MCA) an 'incapacitated person' was one who is incapable of managing and administering his property and affairs either (a) by reason of mental disorder within the meaning of the Mental Health Act 1983, or (b) due to physical affliction or disability; the court may appoint a representative for such a person. (2) A bankruptcy order may be annulled if the order 'ought not to have been made' at the time. (3) The onus cannot lie on the debtor to establish lack of capacity because lack of capacity would itself render the debtor unable to do so: courts should investigate capacity where there is reason to suspect it may be absent. (4) On the facts, Mr Hunt was incapable of engaging in the proceedings by reason not only of mental disorder but also physical affliction or disability. (5) If there had been a representative the outcome could have been different, and one was required. (6) There is no point in an annulment if there is no prospect of a bankruptcy order being refused on a re-hearing; however, in this case the outcome could have been different, particularly given the potential DDA and HRA issues, and the order was annulled.
The rules (accessed on the Insolvency Service on 30/3/11) now state:
(1) The Rules in this Chapter apply where in insolvency proceedings it appears to the court that a person affected by the proceedings is one who [lacks capacity within the meaning of the Mental Capacity Act 2005 to manage and administer his property and affairs] either—
- (a) by reason of [lacking capacity within the meaning of the Mental Capacity Act 2005], or
- (b) due to physical affliction or disability.
(2) The person concerned is referred to as “the incapacitated person”
7.44.— Appointment of another person to act
(1) […] The court may appoint such person as it thinks [just] to appear for, represent or act for the incapacitated person.
(2) The appointment may be made either generally or for the purpose of any particular application or proceeding, or for the exercise of particular rights or powers which the incapacitated person might have exercised but for his incapacity.
(3) The court may make the appointment either of its own motion or on application by—
- (a) a person who has been appointed by a court in the United Kingdom or elsewhere to manage the affairs of, or to represent, the incapacitated person, or
- (b) any relative or friend of the incapacitated person who appears to the court to be a proper person to make the application, or
- (c) the official receiver, or
- (d) the person who, in relation to the proceedings, is the [office-holder].
(4) Application under paragraph (3) may be made [without notice to any other party]; but the court may require such notice of the application as it thinks necessary to be given to the person alleged to be incapacitated, or any other person, and may adjourn the hearing of the application to enable the notice to be given.
Before: DJ Ashton
Reported in Insolvency Law Reports
Re Allen Hunt (a bankrupt) (Preston county court, no 86 of 2007, 12/6/08)
Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgment.
No Bailii link (neutral citation is unknown or not applicable)
LGO decision: Wolverhampton City Council 06/B/16600 (31/3/08) (Referred to in judgment)