The Official Receiver v Brown [2017] EWHC 2728 (Ch)

[2017] EWHC 2728 (Ch)Case number 8191 of 2017
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
INSOLVENCY AND COMPANIES LIST (ChD)
IN THE MATTER OF THE INSOLVENCY ACT 1986
AND IN THE MATTER OF CLIVE WASHINGTON BROWN
Venue Birmingham Civil Justice Centre
33 Bull Street
Venue BirminghamDate 1 November 2017
B4 6DS
Before
His Honour Judge Simon Barker QC(sitting as a Judge of the High Court)
Between
THE OFFICIAL RECEIVERApplicantCLIVE WASHINGTON BROWNRespondent
Lydia Pemberton instructed by Government Legal Department for ApplicantClive Washington Brown in person for in personHearing Hearing date : 25 October 2017
JUDGMENTHHJ Simon Barker QC :
[1]This judgment concerns the effective hearing of proceedings brought by the Official Receiver (‘OR’) against Mr Clive Washington Brown (‘Mr Brown’) by way of certification of non-compliance with certain provisions of the Insolvency Act 1986 (‘IA 1986’) which hearing took place on 25.10.17. The relevant sections of the IA 1986, that is ss. 288, 291, 312 and 333, each provide that non-compliance with a statutory obligation by a bankrupt without reasonable excuse renders the bankrupt guilty of contempt of court and liable to be punished accordingly. I shall refer to the statutory provisions in detail.[2]The procedural foundation for this form of contempt and committal proceeding is under CPR 81.15 which, so far as relevant, provides :
“(1) This Section applies where, by virtue of any enactment, the High Court has power to punish or take steps for the punishment of any person charged with having done or omitted to do anything in relation to a … body or person which, if it had been an act or omission in relation to the High Court, would have been a contempt of that court. (2) … an order under this Section may be made by a single judge of the Administrative Court. … (4) The certification … must be in the form annexed to Practice Direction 81 at Annex A and include or be accompanied by – (a) a detailed statement of the grounds for the certification … (b) any written evidence relied upon; and (c) any other documents required for the certification … (5) … the certification … accompanied by the other documents referred to in paragraph (4) must be served personally on the respondent.

(b) may file and serve evidence”

. Paragraph (2) is not entirely clear, and may be thought to suggest that jurisdiction for determining and punishing contempt following certification under the IA 1986 rests with the Administrative Court. I understand that this question is currently before the Divisional Court which may soon give guidance, in the meantime I proceed on the basis that judges of or sitting as judges in other divisions or courts of the High Court are not excluded from making orders under CPR 81.15. In other words, I read paragraph (2) inclusively and permissively.[3]I also note, as do the notes to CPR 81, that there is neither an Annex A nor an Annex B to Practice Direction, but there are Annexes 1 and 2. In any event, CPR 81.15(4) and (7) appear to me to have been complied with and there has been no complaint about service by Mr Brown. Service and filing of evidence, which may be by witness statement (see CPR 81.15.2 and the standard form of certification at Annex 1), and other documents, in particular the OR’s report, have been the subject of case management orders.[4]There are a number of preliminary matters which I should address at this point.[5]First, as these are committal proceedings, Mr Brown is entitled to legal aid. At a hearing on 9.5.17 of committal proceedings based on the non-compliance with IA 1986 the subject of the proceedings before me but brought under the case number of Mr Brown’s bankruptcy, 336 of 2015, and incorrectly commenced by committal application, Mr Brown sought an adjournment in order to obtain legal aid representation. HHJ McCahill QC granted the adjournment and imposed progress reporting terms. At the further hearing of the committal proceedings on 17.7.17 before HHJ Worster, by which time Mr Brown had neither reported any attempt to obtain representation nor in fact obtained such representation, Mr Brown appeared in person. At that hearing the OR drew attention to the fact that the proceedings did not comply with CPR 81.15. HHJ Worster struck out the committal application within the bankruptcy proceedings (but, notwithstanding Mr Brown’s assertion to the contrary, not the bankruptcy proceedings) and gave directions for the committal application to proceed upon certification and acknowledgment of service compliant with CPR 81.15. HHJ Worster also ordered that the hearing bundle then in existence for the application to commit should stand as the hearing bundle under the application once procedurally regularised. Lest there be any doubt, HHJ Worster expressly granted legal aid to Mr Brown for the purpose of defending the application for his committal to prison.[6]During the hearing before me Mr Brown contended that legal aid was only offered in the context of Case 336 of 2015 (his bankruptcy proceedings) which he contended had been struck out in their entirety by order of HHJ Worster on 17.7.17 and from which bankruptcy he claimed to have been automatically discharged. Both of these contentions are misconceived. As to legal aid, the orders of HHJ McCahill QC and HHJ Worster are clear and unambiguous. They demonstrate(1) the true position as to the contempt proceedings and the limit of what was struck out and(2) Mr Brown’s entitlement to legal aid should he wish to be represented. As to whether Mr Brown’s bankruptcy has been automatically discharged, the order of District Judge Shorthose made at a hearing on 20.1.17 expressly disapplied the automatic discharge of the bankruptcy provisions under s.279 IA 1986 until the OR is satisfied that Mr Brown has complied with his obligations under ss.297 and 333 IA 1986 and files a report to that effect at court or until further order. Accordingly, Mr Brown’s bankruptcy is still current.[7]In order to ensure that Mr Brown was not disadvantaged by lack of representation if he had misunderstood the position as to legal aid, I expressly asked Mr Brown whether he wanted to have legal representation to which he replied that he did not.[8]Secondly, Mr Brown maintained that the bankruptcy petition which led to him being adjudged bankrupt on 12.5.16 was based on an invalid creditor’s petition and, therefore, the entire bankruptcy proceedings and this committal application were and are of no effect and should not proceed further. Mr Brown referred to s. 264 IA 1986 and stated that the creditor’s petition in the name of Percival Patterson was not signed by him but was signed by Rosaleen Kilbane who is a solicitor. That is correct. Mrs Kilbane signed as the petitioning creditor’s solicitor at the prescribed place on the pre-printed standard form, form 6.7. Mrs Kilbane also signed the statement of truth in the prescribed form, form 6.13A, as the solicitor instructed by Mr Patterson. This was compliant with the then applicable Insolvency Rules, Rules 6.10 and 6.12 of the Insolvency Rules 1986. Mr Brown’s objection is misconceived. When I refused to engage in questioning of me by Mr Brown about the creditor’s petition and required him to desist so that the committal application could continue he walked out of court. After a discussion outside court with the court Bailiff, Mr Joseph Deen, Mr Brown left the Civil Justice Centre. However, Ms Dahlia Clarke, who had accompanied Mr Brown at court remained and took notes throughout the proceedings.[9]Thirdly, Ms Pemberton, counsel for the OR, drew attention to the fact that Mr Brown has lodged an appellant’s notice with the Court of Appeal, 2017/2297 lodged 18.8.17, against the order made by HHJ Worster on 17.7.17. Mr Brown seeks to have HHJ Worster’s order set aside and challenges the bankruptcy proceedings against him, and other proceedings, as being fraudulently conducted. He does not seek a stay of the committal proceedings but they would be invalidated if the appeal succeeds. Mr Brown’s application for permission to appeal was considered on paper by Lord Justice Hickinbottom on 31.10 17. Hickinbottom LJ refused permission to appeal and certified the appeal as totally without merit.[10]Fourthly, I had raised with the parties before the hearing and raised again with Ms Pemberton during the hearing on 25.10.17, before considering the merits of the committal application, the OR’s failure to comply with the term of DJ Shorthose’s order of 20.1.17 requiring that intended committal proceedings be issued by 10.2.17. The application was in fact issued on 13.2.17. It is clear that the application was brought to court on Friday 10.2.17 in the expectation that it would be issued on the same day. In the event, the court sealed the application on the following Monday. Whilst non-compliance with a deadline for issue of committal proceedings is plainly a serious matter and leaving issue until the last day is not without risk,(1) no sanction was attached to the original order by DJ Shorthose,(2) no point had previously been taken at the hearings before HHJ McCahill QC and HHJ Worster,(3) Mr Brown did not appear to have been disadvantaged in responding to the committal application by that non-compliance, and(4) it would be disproportionate to stop the committal application in its tracks for that non-compliance. Having regard to the reason for non-compliance and all the circumstances it is appropriate to extend time under DJ Shorthose’s order or waive the non-compliance.[11]I now turn to the background to this case.[12]In 2014 there was a dispute over the right to possession of the premises occupied by the Spade Hammer and Pen Society (‘the Society’) at 202 Slade Road, Birmingham, B23 7RJ (‘the Premises’). The proceedings for possession were begun by the Society, which is an unincorporated association and registered charity, in its own name in May 2014 (‘the Possession Proceedings’) under case number A70BM441. Mr Brown and a company with which he is connected, Phoenix Leisure and Entertainments Ltd (‘P Ltd’) were among the defendants. At a hearing on 21.5.14 before DJ Thompson the Society was represented by counsel and P Ltd by Mr Brown. DJ Thompson made a procedural order : the claim was allocated to the small claims track and directions were given for evidence.[13]The order by which possession of the Premises was finally granted, an order of DJ Salmon dated 18.5.15, referred to the Society as acting by named officers of the Society on their own account and on behalf of the other members of the Society and referred in the body of the order to them as “the Claimants”. Until the hearing before DJ Salmon on 15.5.15 the proceedings had been maintained in the name of the Society only. On 15.12.15 HHJ Cooke heard and refused Mr Brown’s application for permission to appeal the order made by DJ Salmon. At that hearing HHJ Cooke also gave permission for the proceedings to continue even if they were, as Mr Brown contended but which the court did not accept, charity proceedings.[14]The Interpretation Act 1978 definition of ‘person’ includes “a body of persons unincorporated” and a claimant for the purposes of civil litigation “means a person who makes a claim”, see CPR 2.3(1). However, an unincorporated association must litigate by representatives. That was the position in case A70BM441 as from 15.5.15. The order on which the bankruptcy petition and bankruptcy order against Mr Brown were founded was made in the Possession Proceedings by HHJ Cooke on 3.7.15. By then, Mr Patterson and three other named individuals together sued as claimants for and on behalf of the Society. HHJ Cooke ordered Mr Brown to be jointly and severally liable for costs summarily assessed in the sum of £27,500. That is the sum demanded of Mr Brown under a statutory demand served on Mr Brown on 10.9.15; the statutory demanded founded the bankruptcy petition presented on 7.10.15; and, it is the basis upon which Mr Brown was adjudged bankrupt on 12.5.16. The bankruptcy order has not been annulled, set aside or successfully appealed. Accordingly and as a result of DJ Shorthose’s order made on 20.1.17, Mr Brown remains an undischarged bankrupt.[15]Before DJ Shorthose, and at an earlier hearing before DJ Lumb, Mr Brown had contended that he had applied for his bankruptcy to be annulled. However, Mr Brown was unable to produce either a sealed application or evidence of payment of the court fee for such an application. DJ Shorthose proceeded on the basis that there was no such application pending before the court.[16]Following the bankruptcy order, Mr Brown has refused to recognise its validity. Mr Brown maintains that the bankruptcy order is null and void. This provides his rationale underlying his non-compliance with obligations under the IA 1986.[17]The OR has certified and particularised nine grounds of contempt, two under s.288(1) IA 1986, one alternatively under s.291(1) IA 1986, four under s.291(4) IA 1986, one under s.312 IA 1986, and two under s.333(1) IA 1986.[18]The evidence filed in support of the committal certification and application includes an affidavit of Ms Karen Field, the Deputy OR, sworn on 20.7.17 and the evidence contained within the hearing bundle before HHJ Worster which he directed should stand as evidence in the committal proceedings. The evidence before the court on this application is voluminous and consists of the following : report of Kevin Read, Official Receiver [8-13] References are to hearing bundle pagination dated 10.2.17, affidavit of Mr Brown [111-121] dated 26.2.17, summary by Mr Brown [128-130] undated, witness statement of Timothy Tipper [296] dated 21.6.17 witness statement Andrew Turek [297-298] dated 3.7.17, witness statement of Mr Brown [299-319] dated 12.7.17 witness statement of Mr Brown [320-328] dated 14.7.17, certification by Ms Field [344-347] dated 20.7.17, affidavit of Ms Field [348-353] dated 20.7.17, witness statement of Andrew Turek [357-359] dated 3.8.17, affidavit of Mr Brown incompletely dated but filed at court on 20.10.17, affidavit of Clive Gibbons dated 18.7.16 and filed at court by Mr Brown on 20.10.17, and witness statement of Joseph Deen, HMCTS bailiff, made during committal hearing and filed on 25.10.17. The critical evidence was that of Ms Field, Mr Tipper and Mr Brown. Ms Field and Mr Tipper both gave sworn oral evidence.[19]I shall consider each of the grounds in the context of the relevant statutory provision. Certification under s.288(1) IA 1986[20]The provisions of s.288 IA 1986 relevant to the OR’s certification are :
“(1) Where a bankruptcy order has been made otherwise than on a debtor’s petition, the bankrupt shall submit a statement of his affairs to the official receiver before the end of the period of 21 days beginning with the commencement of the bankruptcy. (2) The statement of affairs shall contain— (a) such particulars of the bankrupt’s creditors and of his debts and other liabilities and of his assets as may be prescribed, and (a) such particulars of the bankrupt’s creditors and of his debts and other liabilities and of his assets as may be prescribed, and (b) such other information as may be prescribed. (3) The official receiver may, if he thinks fit— (a) release the bankrupt from his duty under subsection (1), or (b) extend the period specified in that subsection; and where the official receiver has refused to exercise a power conferred by this section, the court, if it thinks fit, may exercise it. (4) A bankrupt who— (a) without reasonable excuse fails to comply with the obligation imposed by his section, or (b) without reasonable excuse submits a statement of affairs that does not comply with the prescribed requirements, is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject)”
. S.288(1) IA986 is now in a different form, but the difference is immaterial to the committal application. S 288(1) which must be read with s.288(2A) IA 1986 now provide : “(1) Where a bankruptcy order has been made otherwise than on a debtor’s petition, the official receiver may at any time before the discharge of the bankrupt require the bankrupt to submit to the official receiver a statement of affairs. … (2A) Where a bankrupt is required under subsection (1) to submit a statement of affairs to the official receiver, the bankrupt shall do so (subject to subsection (3)) before the end of the period of 21 days beginning with the day after that on which the prescribed notice of the requirement is given to the bankrupt by the official receiver”.[21]The OR’s certification raises two grounds, namely that(1) Mr Brown failed to submit a statement of affairs within 21 days of being adjudged bankrupt and otherwise failed to provide the OR with information requested, and(2) failed to deliver up all books, papers and other records which he has in his possession. The certification is signed by Ms Field. Ms Field addressed and verified each of the grounds in her affidavit sworn on 20.7.17. Ms Field gave oral evidence on oath that Mr Brown has not provided any information in writing or orally about his assets and liabilities, and further that Mr Brown has not complied with any obligation that would enable the OR to investigate Mr Brown’s conduct or financial position.[22]Ms Field drew attention to an email from Mr Brown dated 2.2.17 and exhibited to the OR’s report. In the second paragraph Mr Brown stated “Mr Brown as you are aware has no legal obligation to the insolvency services or trustees appointed, and has made his position clear. That will not change”. Ms Field confirmed that that has been Mr Brown’s position throughout.[23]Mr Brown did not remain at court to provide his answer to the OR’s certification or make any submissions as to having a reasonable excuse. However, in his evidence filed in the committal application and in more than a few other written communications to the court, Mr Brown has maintained that(1) the statutory demand arises from a claim filed on 15.5.14 and the procedural order of DJ Thompson dated 21.5.14;(2) the proceedings in case A70BM441 were void from the outset and the order of DJ Thompson was ultra vires and no valid order has ever been made in the Possession Proceedings;(3) the orders of DJ Salmon, made on 15.5.15 (and dated 18.5.15), joining and substituting named individuals to represent the Society as claimants and granting possession of the Premises and the later order of HHJ Cooke, made on 3.7.15, awarding costs in the sum of £27,500 against Mr Brown and others jointly and severally are fatally flawed and of no effect; and,(4) there never has been a debt upon which to found a statutory demand or bankruptcy petition or order. On this basis, Mr Brown has contended that it follows that neither the statutory demand nor the bankruptcy order have any validity in law. For reasons I have explained above Mr Brown’s contentions are misconceived.[24]The required standard of proof is the criminal standard, namely beyond reasonable doubt.[25]Having read the evidence of and having heard Ms Field, I accept the evidence of Ms Field and find that Mr Brown is in breach of his obligation under s.288(1) IA 1986 in that he failed to provide a statement of affairs within the time prescribed by statute or at all and, further, that Mr Brown has not provided any information to enable the OR to assess his assets and liabilities. Nothing in any evidence or communication from Mr Brown to the OR or his trustees in bankruptcy (‘the Trustees’) or the court contains information enabling the compilation of a statement of affairs. There is nothing to indicate that Mr Brown was released from any obligation under s.288(1), rather the OR’s evidence is to the contrary.[26]There is nothing in Mr Brown’s evidence or the documents before the court which is capable of constituting reasonable excuse for failure to comply with the obligations under s.288 IA 1986.[27]The evidence which I have accepted meets the required standard of proof.[28]Accordingly, the OR’s certification in relation to contempt under s.288 IA 1986 is correct and Mr Brown is guilty of contempt of court and liable to be punished accordingly. Certification under s.291 IA 1986[29]The provisions of s.291 IA 1986 relevant to the OR’s certification are : “(1). Where a bankruptcy order has been made, the bankrupt is under a duty—(a) to deliver possession of his estate to the official receiver, and(b) to deliver up to the official receiver all books, papers and other records of which he has possession or control and which relate to his estate and affairs (including any which would be privileged from disclosure in any proceedings). … (4) The bankrupt shall give the official receiver such inventory of his estate and such other information, and shall attend on the official receiver at such times, as the official receiver may reasonably require— (a)for a purpose of this Chapter, or (b)in connection with the making of a bankruptcy restrictions order. (5) Subsection (4) applies to a bankrupt after his discharge. (6) If the bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).[30]The OR’s certification under s.291(1) IA986 is that Mr Brown failed to deliver up his estate and failed to deliver up all books, papers and other records which he has in his possession or control.[31]The OR’s certification under s.291(4) IA986 raises four grounds, namely that(1) Mr Brown was required to but failed to attend on the OR on 13.6.16,(2) Mr Brown failed to answer any questions put to him by the OR on 20.1.17,(3) Mr Brown was required to but failed to attend on the OR on 2.5.17, and(4) Mr Brown was required to and was ordered by HHJ Mccahill QC on 9.5.17 but failed to attend on the OR on 21.6.17.[32]The certification is signed by Ms Field. Ms Field addressed and verified each of the grounds under s.291 in her affidavit sworn on 20.7.17. She gave oral evidence on oath and verified the certification and the OR’s report and the documents exhibited thereto.[33]As to s.291(1) IA 1986, the thrust of Ms Field’s evidence is that Mr Brown has not delivered any books, papers or records relating to his estate and affairs in his possession or control.[34]As to the four grounds under s.291(4) IA 1986 : (1) Ms Field gave evidence on oath that the OR’s department sent Mr Brown a letter dated 26.5.16 requiring Mr Brown to attend at the OR’s office and to bring with him duly completed documents enclosed under cover of that letter (personal information questionnaire, form NTB2, signed authorities for tax and national insurance disclosure, and data protection authority) but Mr Brown did not attend on 13.6.16. On 13.6.16 the OR wrote to Mr Brown noting his failure to attend and fixed another appointment for 14.7.16. Both letters referred to Mr Timothy Tipper as the examining officer for the OR. Mr Tipper gave sworn oral evidence that Mr Brown did not attend either appointment.[35]As to (2), in addition to Ms Field’s evidence that Mr Brown refused to answer questions at the examination hearing before DJ Shorthose on 20.1.17, DJ Shorthose’s order contains a recital that Mr Brown “… refus[ed] to acknowledge the validity of the bankruptcy order, or to answer any questions from the Official Receiver”.[36]As to (3) and (4), Mr Tipper gave sworn evidence that Mr Brown did not attend the OR for examination on 21.6.17 or on any earlier date.[37]The required standard of proof is the criminal standard, namely beyond reasonable doubt.[38]Having read the evidence and heard Ms Field and Mr Tipper, I accept their evidence and find that Mr Brown is in breach of his obligation under s.291(1) and (4) IA 1986 in that he failed to deliver possession of his estate to the OR, failed to deliver up to the OR all - or any – books, papers and other records in his possession or control relating to his estate and affairs, and failed to give an inventory of his estate and other information to the OR following reasonable requests for the same from the OR. Nothing in any evidence of communication from Mr Brown to the OR or the Trustees or the court contains information relevant to understanding Mr Brown’s estate or affairs.[39]There is nothing in Mr Brown’s evidence or the documents before the court which is capable of constituting reasonable excuse for failure to comply with the obligations under s.291 (1) and (4) IA 1986.[40]The evidence which I have accepted meets the required standard of proof.[41]Accordingly, the OR’s certification in relation to contempt under s.291(1) and (4) IA 1986 is correct and Mr Brown is guilty of contempt of court and liable to be punished accordingly. Certification under s.312 IA 1986[33]The provisions of s.312 IA 1986 relevant to the OR’s certification are :(1) The bankrupt shall deliver up to the trustee possession of any property, books, papers or other records of which he has possession or control and of which the trustee is required to take possession. This is without prejudice to the general duties of the bankrupt under section 333 in this Chapter.(2) If any of the following is in possession of any property, books, papers or other records of which the trustee is required to take possession, namely— (a)the official receiver, (b) …, or (c) …, the official receiver … shall deliver up possession of the property, books, papers or records to the trustee. (3 )Any banker or agent of the bankrupt or any other person who holds any property to the account of, or for, the bankrupt shall pay or deliver to the trustee all property in his possession or under his control which forms part of the bankrupt’s estate and which he is not by law entitled to retain as against the bankrupt or trustee. (4) If any person without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).[34]The OR’s certification under s.312 IA 1986 is that Mr Brown failed to deliver up his estate and failed to deliver possession of his property, books, papers and other records within his control or possession to the Trustees. The certification is signed by Ms Field, the Deputy Official Receiver, who gave evidence on oath and verified the certification and the OR’s report and the documents exhibited thereto.[35]Fiona Grant and Lisa Hogg were appointed as the Trustees on 15.6.16. It appears from the documents exhibited to the OR’s report and verified by Ms Field in her oral evidence that Ms Grant wrote to Mr Brown on 29.6.16 enclosing a questionnaire and an Income and Expenditure statement and a financial questionnaire for completion and return within 14 days. That letter also proposed the sale of four properties understood by the Trustees to be owned by Mr Brown and the possibility of Mr Brown having other assets.[36]Ms Field gave sworn evidence that the documents issued by the Trustees were not completed and returned to the Trustees by Mr Brown. That is not contradicted by Mr Brown’s written evidence; on the contrary, Mr Brown’s evidence is that he has not been validly adjudged bankrupt and has no obligation to provide information or cooperate with the Trustees. He also maintains (presumably in the alternative) that his bankruptcy was automatically discharged; that is incorrect in the light of DJ Shorthose’s order of 20.1.17 which suspended the running of time under s.279 IA 1986.[37]There is no evidence that any books, papers or other records of Mr Brown’s are in the OR’s possession; rather the OR’s evidence is that they are not, hence the OR’s committal certification under s.291 IA 1986. Also, there is no evidence that any of Mr Brown’s property is held by a banker or any other person for his account.[38]The required standard of proof is the criminal standard, namely beyond reasonable doubt.[39]I accept the evidence of Ms Field and find that Mr Brown is in breach of his obligation under s.312 IA 1986 in that he failed to deliver possession of his property, books, papers and other records within his control or possession to the Trustees. Nothing in any evidence of communication from Mr Brown to the OR or the Trustees or the court contains a contrary indication.[40]There is nothing in Mr Brown’s evidence or the documents before the court which is capable of constituting reasonable excuse for failure to comply with the obligations under s.312 IA 1986.[41]The evidence which I have accepted meets the required standard of proof.[42]Accordingly, the OR’s certification in relation to contempt under s.312 IA 1986 is correct and Mr Brown is guilty of contempt of court and liable to be punished accordingly. Certification under s.333(1) IA 1986[43]The provisions of s.333 IA 1986 relevant to the OR’s certification are : “(1) The bankrupt shall—(a) give to the trustee such information as to his affairs,(b) attend on the trustee at such times, and(c) do all such other things, as the trustee may for the purposes of carrying out his functions under any of this Group of Parts reasonably require. (2) Where at any time after the commencement of the bankruptcy any property is acquired by, or devolves upon, the bankrupt or there is an increase of the bankrupt’s income, the bankrupt shall, within the prescribed period, give the trustee notice of the property or, as the case may be, of the increase. (3)Subsection (1) applies to a bankrupt after his discharge. (4) If the bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject)”. as the trustee may for the purposes of carrying out his functions under any of this Group of Parts reasonably require. (2) Where at any time after the commencement of the bankruptcy any property is acquired by, or devolves upon, the bankrupt or there is an increase of the bankrupt’s income, the bankrupt shall, within the prescribed period, give the trustee notice of the property or, as the case may be, of the increase. (3)Subsection (1) applies to a bankrupt after his discharge. (4) If the bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject)”.[44]The OR’s certification under s.333(1)(a) and (c) IA 1986 raises two grounds, namely that(1) Mr Brown has failed to give the Trustees such information as to his affairs as the Trustees required by completion of the questionnaire provided to him on or about 12.7.16, and(2) Mr Brown has failed to give the Trustees such information as to his affairs, including his dealings with alleged trusts in respect of his real property, as was required of him in writing on or about 6.9.16. The certification is signed by Ms Field who gave evidence on oath by affidavit and sworn oral testimony and verified the certification and the OR’s report and the documents exhibited thereto.[45]Correspondence between the Trustees and Mr Brown is exhibited to the OR’s report verified by Ms Field. This exhibit includes a letter dated 29.6.16 from the Trustees to Mr Brown seeking information in the form of completed questionnaires and a statement (as noted above). Mr Brown replied by email on 7.7.16 asserting that the bankruptcy order had been returned to the court as an order that is null and void and denied that he had any obligation to cooperate with the Trustees. The email stated that he would return the enclosed documents in due course and that :
“… any further documents sent by you will be construed as harassment, or alternatively an attempt to unlawfully appropriate property to which you have no rights”
. The Trustees’ letter dated 12.7.16 sought clarification of Mr Brown’s statement that the bankruptcy order was null and void and provided information to Mr Brown on the process of annulment. The Trustees also required the provision of information as requested. Mr Brown replied by email on 15.7.16 maintaining his position that the bankruptcy order is invalid and illegal. By this email Mr Brown asserted that he is not required to cooperate with the Trustees. By letter dated 6.9.16 the Trustees’ solicitors, Neil Davies & Partners, drew express attention to ss. 312 and 333(1) IA 1986 and raised specific questions about a ‘home protection trust’ said to have been created on 8.10.13 over four identified properties, including Mr Brown’s family home.[46]The question of the status of the home protection trust has been overtaken by another application and an order made by me. However, Mr Brown’s email communications with the Trustees evidences his refusal to cooperate with them.[47]The required standard of proof is the criminal standard, namely beyond reasonable doubt.[48]There is nothing in Mr Brown’s evidence or the documents before the court which is capable of constituting reasonable excuse for failure to comply with the obligations under s.333(1) IA 1986 at the time.[49]I accept Ms Field’s evidence that Mr Brown has failed and refused to provide information as to his affairs to the Trustees in response to their requests, which in my judgment were reasonable, and consider that it meets the required standard of proof.[50]Accordingly, the OR’s certification in relation to contempt under s.333(1) IA 1986 is correct and Mr Brown is guilty of contempt of court and liable to be punished accordingly. Conclusion[51]It is important to note at this point that the OR seeks nothing more than Mr Brown’s engagement with the process of his bankruptcy and would prefer that Mr Brown engages and cooperates. The bringing of a committal application is a measure of last resort.[52]The OR’s evidence details prolonged and patient attempts by the OR and the Trustees to obtain information to establish Mr Brown’s assets and liabilities and to take possession and control of his estate. Mr Brown’s opposition is implacable and misconceived. There is no reasonable excuse for any of his failures to comply with his statutory obligations under IA 1986.[53]I have no alternative but to find Mr Brown guilty of contempt of court on each of the grounds certified by the OR. He is therefore liable to be punished accordingly.[54]Punishment is a matter for the court. It may take the form of a sentence of imprisonment for up to two years or a fine, as to which there is no monetary limit, or both. Any sentence of imprisonment is automatically halved so that the time actually served is half the sentence given. However, when sentencing, the judge must have regard to the term that is appropriate before reduction. In addition, the court may suspend the sentence given and impose conditions.[55]Before any punishment is considered the person in contempt is entitled to have an opportunity to consider purging his contempt and/or to make submissions in mitigation.[56]Mr Brown is not present in court today. I must therefore adjourn consideration of any purging of contempt and/or mitigation pending his attendance at this court and punishment to a further date.[57]For the avoidance of any doubt, I expressly continue Mr Brown’s right to legal aid in respect of this committal application should he wish to be represented at a further hearing.