Jurisdiction(s):
United Kingdom

Proving purpose under s 423 IA 1986: evidential burden not met; spousal consent restriction not a transaction and had no realisable value in Hinton v Wotherspoon (England and Wales)

Published on: 01 September 2022

Published by a LexisNexis Restructuring & Insolvency expert

Legal News

Article summary

Re Wotherspoon (in bankruptcy); Hinton (as trustee in bankruptcy of John Wotherspoon) v Gillian Wotherspoon [2022] EWHC 2083 (Ch), [2022] All ER (D) 67 (Aug) What are the practical implications of this case?

It is axiomatic that, in nearly every claim, the claimant or applicant bears the burden of proof. That principle equally applies to office-holders pursuing antecedent transaction claims. Pre-bankruptcy dealings between a would-be bankrupt and a spouse or close associate may tempt an office-holder to infer an improper motive and press a claim. This decision squarely reminds insolvency practitioners and lawyers that, even if the recipient’s or bankrupt’s account seems doubtful, there must still be contemporaneous material from which the case can be proved. That is especially significant under IA 1986, s 423, where an improper purpose must be demonstrated and not merely presumed in light of the consequence of the transaction. Further, the case underlines the added challenge of proving an improper purpose where:

the transaction occurred a long time before the bankruptcy, and
there is no or

...

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Popular documents

Using the Judicial College Guidelines to assess general damages in personal injury claims

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

Tomlin orders in England and Wales: CPR guidance on drafting, confidentiality, approval, variation, enforcement, limitation, CCA issues, court-specific requirements, sample wording and precedents

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...

Precedent: Deed of Surrender of Lease with Optional Premium, Settlement and Release, Landlord, Mortgagee and Guarantor Consents, Reimbursement and HM Land Registry Provisions (England and Wales)

Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...

Precedent Statutory Declaration: Standard Wording under the Statutory Declarations Act 1835

I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...