- In modern English bankruptcy law, the courts restrict their broad statutory powers by finding implicit procedural protections for bankrupt individuals, as two welcome recent decisions show.
Two recent decisions highlight the weight being given by the courts to the procedural rights of bankrupt individuals, both before and after discharge from bankruptcy. Re Ferster [2022] EWHC 1060 (Ch), [2022] All ER (D) 81 (May) emphasised the common law limitations on the prima facie wide-ranging power to suspend discharge from bankruptcy under s 279(4) of the Insolvency Act 1986 (IA 1986) for non-compliance with an obligation. In Kennedy v The Official Receiver [2022] EWHC 1973 (Ch), the High Court prioritised consistency and certainty for the bankrupt over judicial flexibility in determining the appropriate duration of a bankruptcy restrictions order under s 281A and Sch 4A, IA 1986.
Both cases exemplify the court’s readiness to read implicit common law constraints between the lines of broadly drafted statutory powers
