Interpretation of section 271(3) of Insolvency Act 1986

J Wilson made this Freedom of Information request to Supreme Court of the United Kingdom

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Supreme Court of the United Kingdom.

Dear Supreme Court of the United Kingdom,

I have been unable to find any case law concerning the interpretation of section 271(3) of the 1986 Insolvency Act on your website, or any others where I've tried. Of course I assume you have access to all decisions of the House of Lords whom I believe were your predecessors.

Can you please therefore provide any information on any cases where a solvent person was declared bankrupt, contrary to this section of the Act? Did they get their bankruptcy order annulled?

It states clearly that a court may dismiss any bankruptcy petition "if it is satisfied that the debtor is able to pay all his debts" and later that "in determining for the purposes of this subsection whether the debtor is able to pay all his debts, the court shall take into account his contingent and prospective liabilities".

However it appears that courts routinely issue bankruptcy orders against solvent persons, because there are no procedures in place, to ensure that any alleged debtor is even asked to provide any statement of their solvency. How can this possibly be legal if it is a requirement of the Act, that their solvency is a material factor to be considered? If they are able to pay their debts, then the court should not make them bankrupt as that would be a perversion of justice, wouldn't it, because material evidence was suppressed?

Also does the Supreme Court uphold the principles of 'natural justice', in particular the second one which states in Halsbury's Laws of England & Wales that unless the defendant to any claim is given a chance to defend it and to know and answer the other sides claims, then any decision against them cannot stand?

What case law has there been on this principle?

Yours faithfully,

J Wilson

Achow, Ann,

Dear Mr/Ms Wilson

Thank you for your enquiry which is receiving attention.

Yours sincerely,

Mrs A Achow
Departmental Records Officer
The Supreme Court of the United Kingdom
Parliament Square
London
SW1P 3BD

Tel: 020 7960 1983

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Achow, Ann,

Dear Mr/Ms Wilson,

Thank you for your enquiry of 4 March.

I am sorry that I am unable to provide the information which you seek.
All court records, including those held by the Supreme Court, are exempt
from release under section 32 of FOI. Even if they were available for
release it is unlikely that they would contain the information you
require as they would only hold information relating to the individual
cases which had been heard by the Supreme Court. Our administrative
records, which are not covered by the section 32 exemption, do not hold
the information which you request. Cases which were heard by the
Appellate Committee of the House of Lords were not transferred to the
Supreme Court when it was set up on 1 October 2009 so you would need to
contact the House of Lords direct. Their Freedom of Information page can
be accessed at:
http://www.parliament.uk/site_informatio...

I would like to explain that our website only contains information
relating to past and current Supreme Court cases and does not provide
details of case law. It is not the Court's role to provide the sort of
information on case law which you are requesting. Information on such
cases can be found in legal books on insolvency using the websites of
legal bookshops for example www.wildy.com or
www.hammickslegal.co.uk/shop to name just two. Commercial legal
databases such as 'Westlaw' and 'LexisNexis' also contain information on
case law although you have to subscribe to these as access is not free
of charge.

As part of our obligations under the FOIA, we have an independent review
process. If you are dissatisfied with this decision, you may write to
request an internal review. The internal review will be carried out by
someone who did not make the original decision, and they will re-assess
how your request was handled.

If you wish to request an internal review, please write or send an email
to the Director of Corporate Services within two months of the date of
this reply, at the following address:

Director of Corporate Services
The Supreme Court of the United Kingdom
Parliament Square
London
SW1P 3BD

e mail: [email address]

If you remain dissatisfied after an internal review decision, you have
the right to apply to the Information Commissioner's Office under
Section 50 of the FOIA. You can contact the Information Commissioner's
Office at the following address:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Internet: https://www.ico.gov.uk/Global/contact_us...

Yours sincerely,

Ann Achow (Mrs)
Departmental Records Officer
The Supreme Court of the United Kingdom
Parliament Square
London
SW1P 3BD

Tel: 020 7960 1983

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Dear Achow, Ann,

I'm sorry to hear that the Supreme Court (and no doubt the House of Lords too) would claim that details of any Court decisions are exempt under section 32 of the FOI Act. Surely all Supreme Court and High Court or Court of Appeal judgements, not appealed to them are made public.

However, it is very difficult to find these unless you know the names of the parties concerned. I would suggest that the State needs to make decisions traceable by 'subject matter' and/or 'relevant law', to make it easy.

It seems to me that section 32 will only cover details of individuals submitted to the court in the proceedings, rather than the final decisions made.

If the Supreme Court is starting out with the aim of not collecting the right sort of data to make public access easier, so that their decisions can be seen to be just and fair, I suggest that they need to change their methods now. No one should need to rely on second or third hand information which the State could provide access to without violating the privacy of those involved in cases, other than the details already given in judgements.

Yours sincerely,

J Wilson

Achow, Ann,

Dear Mr Wilson,

Thank you for your reply.

All court records are exempt from release under section 32 where they
are not already publicly available. All the Supreme Court's judgments
and press releases relating to those judgments are available on the
decided cases section of our website
http://www.supremecourt.gov.uk/decided-c... as covered by
our FOI Publication Scheme. You would have to look at each judgment or
press release to see whether the individual case dealt with an
insolvency issue.

If you wish to access High Court or Court of Appeal judgments you should
try HMCS's website at http://www.hmcourts-service.gov.uk/

Yours sincerely

Ann Achow (Mrs)
Departmental Records Officer
The Supreme Court of the United Kingdom
Parliament Square
London
SW1P 3BD

Tel: 020 7960 1983

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Dear Achow, Ann,

I think your missing the point of my enquiry. Firstly, I cannot see that all court records should be exempt from the Freedom of Information Act, given that judgements and reasons for decisions ought to be made public anyway, then you should be able to answer my questions.

Secondly, as you've confirmed, for me to find the answers myself I would have to search through every single judgement to find the information which I seek. Which for the House of Lords and appeal courts would take forever.

Since the courts, especially the Supreme Court which is starting afresh, could record this sort of information when deciding the case then it would be easier to find cases which are linked, by reference to the major legal points at issue in the case if this were recorded at the time. Why has no one in power ever thought of compiling a database of cases which could be searched in this manner?

Yours sincerely,

J Wilson

Achow, Ann,

Dear Mr Wilson

I am sorry that you feel that my replies do not meet your needs.

Court records are exempt from release under the FOI Act because courts
have their own rules for access to their records. The Supreme Court's
Rules which are available on our website make provision for
consideration of the release of court documents on payment of a fee.
The fees are set by the Lord Chancellor, not by the Court. Rule 39 of
the Supreme Court Rules 2009 deals with this matter. There is a fee
charged for access and the Supreme Court's fees are listed in Practice
Direction 7 Annex 2 item 3.3 entitled 'on filing any other procedural
application'. Requests to the Registrar for access to the Court's
records are covered under this item. Those who inquire about documents
which the parties have filed are firstly advised to approach the
parties' solicitors directly as they may be content to provide
information and copies. If the parties object to releasing information,
a formal application on Form 2 has to be made under rule 39; this
attracts the fee for procedural applications as provided by the Fees
Order, (see Practice Direction 7 para 7.2.6). When receiving an
application on Form 2 the Registrar will consider the competing
interests of the parties against the interests of the requestor. All
documents have to be assessed to determine if they contain sensitive
personal/commercial data and whether the release of information may be
authorised.

Judgments give not only the decision but the reasons for the decision
and are available on our website as provided for in our Publication
Scheme so are not covered by the fees regime or FOI section 32
exemption. The High Court and Court of Appeal also make their judgments
available. I recognise that the search facility on our website does not
pick up catchwords and that you would have to look at the first few
lines of each judgment unless you knew the case name or number. We are
always happy to receive feedback and I have logged your comments for
any future review of the website.

I cannot comment on how HM Court Services makes its judgments available
nor am I able to answer your final question. I have done some research
for you and found that there is a website www.bailii.org run by the
British and Irish Legal Information Institute which may be of use to
you. From the home page you can click on 'Case Law Search' where
there is an advance search facility where you can enter keywords.

Yours sincerely,

Ann Achow (Mrs)
Departmental Records Officer
The Supreme Court of the United Kingdom
Parliament Square
London
SW1P 3BD

Tel: 020 7960 1983

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Dear Achow, Ann,

Thank you for your prompt reply and for at least acknowledging that judgements are not covered by the 'fees regime' r FOI section 32 exemption. How soon will the 'review of the website' take place?

It is not only the Supreme Court but all other courts which need to change their access to judgements. So can you pass my suggestion on to those too.

I have tried the www.bailli.org website several times but they do not hold the details of every case, but apparently only selected cases, and they are just as hard to find without reference numbers as anywhere else.

That is why I believe that under the FOI Act the State needs to make it easier to access information on what judgements are made by every court and why. They can only do that by ensuring that cases can be traced by subject matter, e.g section 271(3) of Insolvency Act or just Insolvency Act for all cases.

I trust that you will pass this on immediately as the longer it takes to start up the harder it is to rectify old systems which don't work as they should in order to comply with the FOI Act. Perhaps you need to hold an Internal Review of this request in order to consider the HM Courts Service's procedures too.

Yours sincerely,

J Wilson

Achow, Ann,

Dear Mr Wilson

You request for an internal review has been passed to Mr William Arnold
who is the official here who deals with FOI internal reviews. He has
asked me to let you know that because of his leave commitments over
Easter followed by his absence from the office to represent the Supreme
Court at a conference he will not be able to deal with the review until
19 April at the earliest. He expects to be able to give you his decision
by 27 April. If there is a delay which means that he will not be able to
let you know his decision by that date I will let you know and give you
a revised date.

You asked about the review of the website. I said that I had logged your
comments for any future review of the website. I did not say that there
was a review planned at this stage. As we have only been in existence
for six months and systems and procedures are still bedding down we do
not have a planned date for reviewing the website at this stage but when
we do your comments will be considered along with any other feedback
that we receive.

I will pass your comments concerning the traceability of cases by
subject matter to the Ministry of Justice/HM Courts Service as soon as I
have identified the relevant official(s).

Yours sincerely,

Ann Achow (Mrs)
Departmental Records Officer
The Supreme Court of the United Kingdom
Parliament Square
London
SW1P 3BD

Tel: 020 7960 1983

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Chandler, Angela,

Dear Mr Wilson

I am writing to let you know that we are unable to respond to your FOI
request by 27 April.

The reason for the delay is that William Arnold, who is the Reviewing
Officer for FOI requests, has been attending a conference in Canada and
was due back in the UK last Saturday but has been unable to get a flight
back to the UK until this evening.

We are sorry for this delay and will endeavour to send our response to
you by the end of next week.

Yours sincerely

Angela

Angela Chandler
PS William Arnold
Director of Corporate Services
The Supreme Court of the United Kingdom
Parliament Square
London SW1P 3BD

Tel: 020 7960 1987
Fax: 020 7960 1902

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unless there is a genuine legal requirement to do so and only with the appropriate lawful authority.

With respect to any email sent or received by a judge, the 'appropriate authority' will
be a senior member of the judiciary or other authority as agreed with the judiciary.
(For this purpose of this statement references to the 'judiciary' and 'judge' includes
all full time, part time and deputy judges, Recorders and all legal and non-legal members
of Tribunals, whether salaried or fee-paid who use judicial information in order to under take their duties.)

It is UKSC and MoJ policy to comply with all legal and regulatory requirements in the handling
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or forwarding e-mails and their contents.

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Dear Chandler, Angela,

Thank you for informing me of the delay in dealing with the application for Internal Review, however I would also like to add this request.

When considering how the Supreme Court has dealt with my application under the FOI Act, I would point out that in my initial request, I was actually seeking an interpretation of how the Courts should be applying section 271(3), which need not necessarily be solely derived from any 'decided case'. Surely, the Judges of the Supreme Court will already have a view of the correct implementation of this section of that 'Act', even if there has not yet been a decided case in this court or the House of Lords where they might also have served as judges.

I have made a similar request to the Judicial Studies Board which can be viewed here for more details of my opinion on it, which has also not been replied to - http://www.whatdotheyknow.com/request/ho.... I feel that the Supreme Court of this country ought to know what the lower courts are doing and where they are going wrong so that someone will take responsibility for telling judges what they should be doing, rather than allowing them to continue to get things wrong and consequently also violate human rights of alleged 'debtors'.

Yours sincerely,

J Wilson

Arnold, William,

Dear Mr Wilson

I am sorry that I am only now able to respond to your request for an
internal review of our handling of your Freedom Of Information Act (FOI)
request relating to the interpretation of Section 271(3) of the
Insolvency Act 1986. As I know you were informed, I was attending a
conference in Canada and was then stranded there for nearly a week. So
this has delayed my looking at your request until now.

First, As Mrs Achow has explained, under the provisions of the FOI Act
court records are exempt from disclosure to the extent that they are not
already in the public domain. This is the law and we have no discretion
under the FOI Act to release such records. If you wish to debate the
policy embodied in the Act, that is a matter for the Ministry of
Justice; and you should take the matter up with them, perhaps via your
MP.

In contrast UK Supreme Court judgments are publicly available on our
website; as are those of the High Court and the Court of Appeal on that
of Her Majesty's Court Service. We would not therefore provide those to
you specifically under the FOI provisions, since they are publicly
available already.

The FOI Act otherwise requires us to release information we already
hold, but it does not require us to collect information we do not hold
and / or put it into a different form, even if applicants may request
this. Indeed we would not have the resources to do this. We are not
therefore able to search out and give you any collection of case law on
the application of the statutory provision in question. You may well be
able to obtain this information, however, by using one of the
commercially available case law databases.

Again, if you think that, as a matter of policy, information on case law
should be available in this format at public expense, you should take
the matter up with the Ministry of Justice. You might wish to contact
[email address] in the first instance,
if you wish to raise these points with the Ministry of Justice (HM
Courts Service is an agency of the Ministry of Justice).

Your most recent email of 28 April also makes clear that you are
'actually seeking an interpretation of how the courts should be applying
section 271(3), which need not necessarily be solely derived from any
decided case.' This is a request not for information and so it does not
come within the provisions of the FOI Act. Rather it is a request for
legal advice on the application of the statutory provision in question.
You need to consult a solicitor for this. No court or judge is permitted
to give such advice, because to do so would compromise their
independence and impartiality in any case which might subsequently come
before them for decision. The judges only declare the law in the context
of their judgments in the cases that come before them.

Having considered your FOI request, the responses you have previously
been given and the considerations set out above, I have reached the
decision, on internal review, that your FOI request was dealt with
correctly.

In the circumstances there is, therefore, nothing I can add to the
explanations and information Mrs Achow has already given you in response
to your FOI request.

William Arnold

Director of Corporate Services

The Supreme Court of the United Kingdom
Parliament Square
London SW1P 3BD

020 7960 1880

[email address]

This e-mail (and any attachment) is intended only for the attention of the addressee(s).
Its unauthorised use, disclosure, storage or copying is not permitted. If you are not the
intended recipient, please destroy all copies and inform the sender by return e-mail.

Internet e-mail is not a secure medium. Any reply to this message could be intercepted and
read by someone else. Please bear that in mind when deciding whether to send material in
response to this message by e-mail.

This email has been sent from an email service operated for the UK Supreme Court by the
Ministry of Justice (MoJ). Communication via this service may be automatically logged,
monitored and/or recorded for legal and service support purposes, and emails identified
as containing malicious or inappropriate content may be blocked.

Emails on this service will not be read by anyone except the sender or intended recipient
unless there is a genuine legal requirement to do so and only with the appropriate lawful authority.

With respect to any email sent or received by a judge, the 'appropriate authority' will
be a senior member of the judiciary or other authority as agreed with the judiciary.
(For this purpose of this statement references to the 'judiciary' and 'judge' includes
all full time, part time and deputy judges, Recorders and all legal and non-legal members
of Tribunals, whether salaried or fee-paid who use judicial information in order to under take their duties.)

It is UKSC and MoJ policy to comply with all legal and regulatory requirements in the handling
of email communications. You have a responsibility to ensure laws are not broken when composing
or forwarding e-mails and their contents.

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Dear Arnold, William,

I fail to see how you can possibly say that requesting an interpretation of how section 271(3) of the Insolvency Act 1986 should operate is "not a request for information"!

If the Supreme Court or it's judges, when in the House of Lords, have not decided any cases on this matter, then they must surely have expressed, or be able to express, an opinion on it. Given that this is a matter of importance which effects Human Rights then I must maintain that this supersedes any restrictions placed on you by the FOI Act 2000.

Additionally, under UN General Assembly Resolution 53/144 Article 6, every human being has the right to know how their human rights, as due under the Universal Declaration of 1948 and other International Instruments have been given effect in domestic legislation. Under Article 17(2) of the Universal Declaration of 1948, we all have the right to "Not be arbitrarily deprived of his(or her) property".

I fail to see how the Insolvency Act 1986 protects anyone from such arbitrary violation, especially when the courts and the Insolvency Service seems to believe that the solvency or otherwise of a 'debtor' is irrelevant to the making of any Bankruptcy order. Only if section 271(3)were universally applied to every case, before any order is made, would it have any effect. I am shocked to think that this State claims that such relevant information is either unobtainable from it or exempt from release under the FOI Act.

Article 6 of Resolution 53/144 of 1998 states that "Everyone has the right, individually and in association with others: (a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems".

So, in that vain, I require to know how everyone's right to not be arbitrarily deprived of their property, under Article 17(2) of the Universal Declaration of 1948 has been given effect in UK legislation or Supreme Court decisions or by other judicial or administrative systems, such as the Insolvency Service?

Under Article 10 of Resolution 53/144 no one has the right to deny anyone such information because under it "No one shall participate, by act or by failure to act where required, in violating human rights and fundamental freedoms and no one shall be subjected to punishment or adverse action of any kind for refusing to do so".

In other words, as I see it, no one can violate human rights by failing to act to protect them, even by using the excuse of UK laws. That would include providing information on how those rights have been protected even if the FOI Act claims they are exempt. I would have thought that the MPs expenses scandal would have provided some evidence to that effect.

If you still refuse to provide the information I request I trust that the Information Commissioner will compel you to do so, unless they too choose to violate human rights by doing nothing to protect them.

Yours sincerely,

J Wilson

Arnold, William,

Dear Mr Wilson,

The content of your e mail of 8 May 2010 is noted. I have nothing to add
to my internal review decision. If you are not satisfied with the
outcome you may, as previously advised by Mrs Achow, take up your
complaint with the Information Commissioner. You can contact the
Information Commissioner's Office at the following address:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Internet: https://www.ico.gov.uk/Global/contact_us...

Yours sincerely,

William Arnold

Director of Corporate Services

The Supreme Court of the United Kingdom
Parliament Square
London SW1P 3BD

020 7960 1880

[email address]

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J Wilson left an annotation ()

As suggested I have once again contacted the information commissioner, but have to say that I have not heard from them about my earlier requests to them on other FOI requests denied.

Are they just another totally corrupt arm of Government, or am I just paranoid?

Francis Irving left an annotation ()

Hi John -

The authority is correct about FOI law. The law only applies to specific recorded information. If they don't already have it indexed in the way that you want, FOI law won't help you force them to so index it.

I agree with you that the law could be published by the state in a more complete, structured and indexed form, and that that would be a good thing.

Francis Davey left an annotation ()

The Supreme Court doesn't make bankruptcy orders (the High Court and County Courts do that) and very very rarely hears cases concerning bankruptcy so this is almost certainly the wrong outfit to be asking. Pretty much all their (and the House of Lords's) case law is online and indexed by google anyway. If you can't find what you want using google then the overwhelming likelihood is the Supreme Court don't have it.

There are various ways that bankruptcy orders can be set aside. Orders can be (and are) made against people who are solvent but the order can be undone if that is the case (and the alleged insolvent takes the right action). This is normal for any court system and happens frequently with claims in general, eg where the claim form is lost in the post.

Probably reading a good book on insolvency law and then looking at a practitioner's case book is the sensible thing to do - that will give all relevant authorities on the subject.

My handbook (which is a little out of date) suggests the following case as leading:

HM Customs & Excise v Dougall [2001] BPIR 269

And a search of bailii reveals quotes from it such as in:

http://www.bailii.org/ew/cases/EWHC/Ch/2...

At paragraph 31.

I'm afraid you'll have to do the legal research yourself - the courts won't do it for you.