Louis Doyle KC has succeeded in lifting an order, imposed in 2018, suspending the running of time in Boris Becker’s bankruptcy, thereby securing Mr Becker’s discharge from bankruptcy.
A bankruptcy order was made against Mr Becker on 21 June 2017. Creditor claims in the bankruptcy stood at c.£52m. By s.279 of the Insolvency Act 1986, a bankrupt obtains his or her discharge from bankruptcy after one year, subject to contrary order. The most important (but not only) consequence of discharge is usually release under s.280 from the debtor’s bankruptcy debts. Following an interim order, the trustees-in-bankruptcy obtained an order three days before the end of the s.279 year suspending the running of time for discharge purposes based on Mr Becker’s non-compliance with his statutory obligations.
The bankruptcy was complicated, quite apart from Mr Becker’s imprisonment in April 2022 for a term of thirty months following conviction for four offences, out of twenty-nine on the indictment, under the 1986 Act, for which Mr Becker served a truncated term of eight months before being deported in December 2022 and prohibiting his return to the jurisdiction until 2025, an exclusion currently under challenge. Complexities in the bankruptcy included challenged pre and post-bankruptcy transactions, claims concerning a large number of trophies and memorabilia and Mr Becker’s claim in 2018 (abandoned later that year) of immunity from suit under the Vienna Convention on Diplomatic Relations 1961 by reason of his status as a diplomatic agent to the European Union for the Central African Republic. As the Judge put it, “Failed and misguided applications that were made by Mr Becker in June and July 2018 led to a climb down and an adverse costs order”.
Mr Becker’s change of legal representation in 2021 signalled a sea change in approach. By November 2023 an all-encompassing settlement agreement had been reached with the trustees, the terms of which remain confidential, prompting the application to discharge the suspension of time running.
The reserved judgment of Chief Insolvency & Companies Court Judge Nicholas Briggs, sitting at the Rolls Building, London, is noteworthy because it establishes that, in order to discharge the suspension of time running for s.279 purposes, the court needs to be satisfied, not that a bankrupt has done everything to make good any matters of non-compliance with his or her obligations, but that, “objectively viewed, he or she has done all that he or she could reasonably do in the circumstances of the case in fulfilling any outstanding obligations previously identified”. That threshold is pragmatic by design and caters for the possibility that, amongst other things, with the passage of time, strict compliance is simply not possible. On the facts, the Judge was satisfied that Mr Becker “clearly falls on the right side of the line”. The Judge doubted, but left open for a case in which it mattered, whether considering discharge of suspension engages any sort of judicial discretion, the Judge indicating that he would have exercised any such discretion in Mr Becker’s favour.
Although the trustees indicated that they were neutral on Mr Becker’s application, the Judge expressed some disquiet at the articulation of their position in evidence. (Insolvency lawyers will know well the perennial problem of the party which represents itself as neutral but adopts an apparently different stance before the court). The judge indicated that the trustees “would have done better if they had asked themselves whether there was sufficient evidence to succeed on an application to suspend bankruptcy… This may have enabled them to objectively view the current state of affairs”.
The judgment in Becker v (1) Ford (2) O’Connell (3) Official Receiver [2024] EWHC 1001, which includes a very useful indication of the practice based on an analysis of the authorities, is available here.
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