Lewis & Anor v Metropolitan Property Realisations Ltd

This the judgment of the court on an appeal from a judgment of Proudman J dated 21^st November 2008 in which she refused a claim for a declaration that the respondents (Metropolitan Property Realisations Limited, “MPRL”) had no interest in property formerly belonging to the claimants (Mr and Mrs Lewis) known as 35 Little Common, Stanmore, Middlesex (“the property”). Mr and Mrs Lewis appeal with her permission. The appeal raises the question of what is meant by “realises” in s.283A(3)(a) of the Insolvency Act 1986.

Immediately before his bankruptcy on 12^th July 2004, the property was vested jointly in Mr and Mrs Lewis and was their sole or principal residence. Although the judge below made no finding about its value, evidence from MPRL indicates that at the time of the bankruptcy the property was worth approximately £1m, with charges of about £720,000 affecting it. The trustees investigated the nature, extent and enforceability of Mr Lewis’ interest, and Mrs Lewis claimed an equity of exoneration over it which, she said, made her in effect the sole owner of the equity in the property. The trustees did not accept this version, but decided not to incur expense in trying to get in the value of Mr Lewis’ share in the conventional way by seeking an order for sale of the property. The creditors as a whole were not prepared to fund any litigation to achieve that. MPRL, as the second largest creditor in the bankruptcy, was disappointed with that state of affairs and took an assignment of Mr Lewis’s beneficial interest, which has given rise to the questions determined by the judge below.

The assignment is dated 11^th July 2007 (the day before the third anniversary of the bankruptcy, the significance of which will appear shortly). It is, to our eyes, somewhat oddly worded. It recites that the trustees have agreed to assign the benefit of “the beneficial and equitable interest hereinafter referred to” to MPRL and recites the fact that Mr and Mrs Lewis were “registered proprietors of the Property” that is to say the whole of the 35 Little Common property. Its material wording then goes on as follows:

“4.

In consideration of the sum of one pound (£1.00) now paid by the Assignee to the Assignor [sic]…the Assignors [ie the trustees in bankruptcy] HEREBY ASSIGN to the Assignee all the equitable and beneficial rights and interest as the Assignor has in the Property.

5.

In the event that the Assignee effects a sale of the Property, then following completion of the sale and upon receipt of the proceeds of sale and the deduction of all costs and expenses including but without limitation to professional and legal fees, marketing costs and further taxes, twenty-five per cent (25%) of the net proceeds of sale of the Property will be paid by the Assignee to the Assignor.”

It is paragraph 5 which seems to us to contain odd wording. What was being assigned was a beneficial interest in property in respect of which Mr and Mrs Lewis remained the legal owners. The “Property” is the whole of the property, and not the interest assigned to MPRL. It is not readily apparent how MPRL can “effect a sale” of the Property thus defined. It could sell its own interest (in theory) but that would not generate a sum which can be seen to be a percentage of the proceeds of sale of “the Property”. Were MPRL to apply successfully for an order for sale, then it would not technically have “effected” a sale; but what if there is a voluntary sale? Furthermore, if there is a sale of the whole of the property by the legal owners, it might still be that MPRL is not in a position to pay 25% of the net proceeds; that would depend on what it manages to get in its own hands when all accounts are taken and all claims given effect to. The deed is therefore somewhat unsatisfactory. However, at the invitation of the parties, and in particular of Mr Stephen Davies QC who appeared for the Lewises, we have assumed for the purposes of this appeal that the assignment is one of Mr Lewis’s interest in the property, in exchange for an obligation to pay £1 immediately and a proportion of what MPRL receives when the money eventually falls in, however that might happen.

S.283A was added to the Insolvency Act 1986 by s.261 of the Enterprise Act 2002. It contains modifications of the rights of the trustee in order to restrict the possibility of a trustee hanging on to a beneficial interest for many years without taking any steps to realise it. It provides as follows:

“283A Bankrupt’s home ceasing to form part of estate

(1)

This section applies where property comprised in the bankrupt’s estate consists of an interest in a dwelling house which at the date of the bankruptcy was the sole or principal residence of:

(a)

the bankrupt,

(b)

the bankrupt’s spouse or [civil partner], or

(c)

a former spouse [or former civil partner] of the bankrupt.

(2)

At the end of the period of three years beginning with the date of the bankruptcy the interest mentioned in subsection (1) shall –

(a)

cease to be comprised in the bankrupt’s estate, and

(b)

vest in the bankrupt (without conveyance, assignment or transfer).

(3)

Subsection (2) shall not apply if during the period mentioned in that subsection –

(a)

the trustee realises the interest mentioned in subsection (1),

(b)

the trustee applies for an order for sale in respect of the dwelling-house,

(c)

the trustee applies for an order for possession of the dwelling-house,

(d)

the trustee applies for an order under section 313 in Chapter IV in respect of that interest, or

(e)

the trustee and the bankrupt agree that the bankrupt shall incur a specified liability to his estate (with or without the addition of interest from the date of the agreement) in consideration of which the interest mentioned in subsection (1) shall cease to form part of the estate.

(4)

Where an application of a kind described in subsection (3)(b) to (d) is made during the period mentioned in subsection (2) and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application –

(a)

cease to be comprised in the bankrupt’s estate, and

(b)

vest in the bankrupt (without conveyance, assignment or transfer).

(5)

If the bankrupt does not inform the trustee or the official receiver of his interest in a property before the end of the period of three months beginning with the date of the bankruptcy, the period of three years mentioned in subsection (2) –

(a)

shall not begin with the date of bankruptcy, but

(b)

shall begin with the date on which the trustee or official receiver becomes aware of the bankrupt’s interest.

(6)

The court may substitute for the period of three years mentioned in subsection (2) a longer period –

(a)

in prescribed circumstances, and

(b)

in such other circumstances as the court thinks appropriate.

(7)

The rules may make provision for this section to have effect with the substitution of a shorter period for the period of three years mentioned in subsection (2) in specified circumstances (which may be described by reference to action to be taken by a trustee in bankruptcy).

(8)

The rules may also, in particular, make provision –

(a)

requiring or enabling the trustee of a bankrupt’s estate to give notice that this section applies or does not apply;

(b)

about the effect of a notice under paragraph (a);

(c)

requiring the trustee of a bankrupt’s estate to make an application to the Chief Land Registrar.

(9)

Rules under subsection (8)(b) may, in particular –

(a)

disapply this section;

(b)

enable a court to disapply this section;

(c)

make provision in consequence of a disapplication of this section;

(d)

enable a court to make provision in consequence of a disapplication of this section;

(e)

make provision (which may include provision conferring jurisdiction on a court or tribunal) about compensation.”

The point in this case concerns the extent to which the assignment which we have identified above amounts to a realisation for the purposes of subsection (3)(a). Mr and Mrs Lewis maintain that it does not and that Mr Lewis’s interest has now revested in him pursuant to subsection (2); MPRL maintains that the trustees “realised” the estate’s interest by virtue of the assignment.

In her judgment, the learned judge set out the short facts and the relevant provisions of the section, and identified the issue. She came to the conclusion that the assignment fell within the expression “realises” within subsection (3)(a) by considering the following:

In the light of the foregoing, she found that:

“there is nothing in section 283A requiring any realisation for the purposes of that section to be on terms more restrictive than are available to the trustee generally under the 1986 Act”

and determined that

“…a trustee who sells the estate’s interest for deferred contingent consideration ‘realises’ the interest within the meaning of s.283A of the Insolvency Act 1986.” (paragraph 32)

Mr Davies said that the judge was wrong in the conclusions that she reached. His basic criticism of the judgment of Proudman J was that she confused or elided the concepts of realisation and sale, gave an inappropriate emphasis to the powers of the trustee in bankruptcy to sell on deferred consideration (which he said did not affect what was meant by “realise” in the section in question), failed to have due regard to what he described as the “concept” behind the relevant provisions of the Act, and wrongly relied on Ramsey v Hartley. What “realise” meant in subsection (3)(a) was “turn into cash”; nothing less would do. The transaction between the trustees and MPRL did not achieve that, and it was therefore without the section, with the effect that the interest of Mr Lewis reverted to him after the statutory 3 years. Mr Briggs, who appeared for MPRL, said that the judge, and her approach, were right. The scheme of the section did not require Mr Davies’s conclusion, and that any potential abuse of the technique of selling to third parties on deferred consideration (or indeed any other abuse) was safeguarded against by the Trusts of Land and Appointment of Trustees Act 1996, which would be capable of operating so as to prevent any such third party obtaining a sale.

All words which require construction or interpreting have to be placed in their proper context. The same is true of “realise” in subsection (3)(a). The question that we have to consider is whether, in its context, it is capable of covering a transaction where there is a deferred monetary consideration during the period before that consideration comes in. Nonetheless, it is an ordinary English word and it is appropriate to start with a consideration of what the normal English meaning of the word is.

The Oxford English Dictionary definition of “realise” is:

“convert into cash or money”

That is a good starting point for the Lewis’s case. Alternative definitions are recorded by the judge as being “sell out” and “fetch as a price”, which she described as being more general, but we still think that they import the general impression of a completed transaction as opposed to one where the price is still outstanding.

The Lewis’s case is further advanced by the use of the word in authorities. Two somewhat historic cases were cited to the judge and referred to by her in her judgment. In Re Oxford Benefit Building and Investment Company (1886) 35 Ch D 502 Kay J had to consider the meaning of a provision that “no dividends shall be paid except out of the realised profits arising from the business of the company”, and in that context said:

“ ‘realised’ must there have its ordinary commercial meaning, which, if not equivalent to ‘reduced to actual cash in hand’, must at least be rendered tangible for the purposes of division.”

In Board of Trade v Block (1888) 13 App Cas 570 Lord Fitzgerald had to consider the expression “realisation of [a bankrupt’s] property, which a bankrupt was to do his utmost to aid, and said:

“What does ‘realisation’ here mean? I should say it has the same meaning as it would have in any of the everyday transactions of life. If you speak of realising stocks or securities, or give your broker instructions to do so, what is meant by realising? Nothing more than their sale and conversion into money at the highest price that can reasonably be obtained.”

In her judgment Proudman J set out those passages and then observed:

“However, there was no issue in either case as to the point of time when the realisation occurred. I would therefore distinguish such authorities.” (paragraph 20)

The first sentence of her remark is true so far as it goes, but the observation does not seem to us quite to address the point. Those cases, like the first dictionary definition, are both cases in which the judges accepted that the concept of realising something involved the reduction into cash, and strongly suggest that it does not happen until the cash is all actually available. These cases do not determine what “realise” means in subsection (3)(a), but they are helpful pointers towards an application of the normal English meaning of the word.

In a bankruptcy context the word has been given a similar meaning. In Re a Debtor (No 29 of 1986) Vinelott and Warner JJ had to consider section 82 of the Bankruptcy Act 1914 which provided for a commission or percentage to be paid to the trustee “on the amount realised by the trustee”. The question before them was whether the “amount realised” included money passed to him by a mortgagee who sold a property notwithstanding that the trustee had not himself done anything to get that money in – he had merely accepted it. The county court judge held that realisation required some positive acts by the trustee so the money was not an “amount realised by the trustee”. Vinelott J disagreed and at page 185H said:

“In my judgment the word ‘realised’ in the context of section 82(1) simply means ‘got in or reduced into cash’, and the words ‘by the trustee’ mean simply in his capacity as trustee, that is from assets which vested in him as trustee.”

He was faced with a different contrast than that which arises in this case. His case turned on the extent to which a trustee had to do something in order to “realise” an asset, which is not the same question we have. Accordingly Vinelott J’s remarks as to the meaning of “realised” were not directed to our issue. Proudman J made a similar observation in paragraph 19 of her judgment. However, it is not without significance that, in a bankruptcy statute, he applied what has already been held to be the ordinary English meaning of the words. We think it is more significant to the present case than she thought it was.

We turn next to the all-important question of context. Reliance on the context of the word has various aspects. One is the immediate surroundings of the word itself. Another is the wider context of the Act itself, and how that word is used (if at all) in other parts of the same statute. While an undefined term does not have to bear the same meaning throughout the statute, it is prima facie likely that it was intended to. Mr Davies took us through each occurrence of the word “realise”, or words arising of its stem (“realisations”, “realised”, and so on) in the remainder of the Act and in various pieces of subordinate legislation. In the Insolvency Act 1986 the relevant provisions were sections 143, 305(2), 306A(3), 306C(3), 313(1), 330(1), 332, 421(4), and Sched B1 para 3(1)(c). In the Insolvency Rules he drew our attention to rules 2.100, 4.107(4) and (5), 4.127(2), 4.127A(2)(a), 4.127B(1) and (2), 6.125(4) to (6), 6.138A(2)(a), 6.139(1), 6.237D(3)(c). We were also taken to the Insolvency Fees Order 1986 (now revoked). We will not set out each of those provisions in this judgment. Mr Davies’s point was that in all those provisions the “realisation” word in question was used in a sense which involved the turning of the realised property into cash, and was inconsistent with part of its value being left outstanding in an unfulfilled monetary (or other) obligation. In other words, they seemed to be being used in a sense which accords with the normal English meaning identified above. We agree with him on most of them (as indeed did Mr John Briggs, who appeared for MPRL), though one or two of them might be thought to be less compelling than others. For example, section 313 allows the imposition of a charge on a dwelling house where the trustee is “for any reason, unable for the time being to realise that property”. It would not be unnatural to allow the word “realise” in that section to encompass a sale for deferred consideration, or conceivably any exchange for other property. However, that is the most that can be said about it. For the most part the use of the “realise” word in the other sections strongly suggests that it involves a final and completed change of identity into distributable or usable cash. That supports Mr Davies’s submissions as to the meaning in subsection (3)(a).

That conclusion gets further support from an analysis of the structure and apparent Parliamentary purpose of the provision. The provision was new in 2002, and it formed part of a package of measures affecting bankruptcies on or after 1^st April 2004. Some of those measures have no direct bearing on the point at issue in this appeal (for example the reduction of the discharge period from 3 years to 1 year) but others seem to form part of a scheme, albeit not necessarily an overall consistent one. The scheme reinforces the views expressed by Lawrence Collins J in Re Byford decd, Byford v Butler [2004] P & CR 12. That was a case under the old regime in which the question was as to the allowances that the wife and the trustee in bankruptcy should be allowed in adjusting their respective interests in a jointly owned house. The trustee had waited almost 10 years before taking steps to realise the property. Lawrence Collins J reflected on the position and said (at page 163):

“Parliament has now made it clear in the new s.383A [sic s.283A] of the Insolvency Act 1986 … (not yet in force) that it is undesirable for trustees to wait for many years before resolving their rights in respect of the home of the bankrupt or his spouse. This introduces a general rule that the trustee must take steps to realise his interest in the home of the bankrupt or his spouse within three years of the bankruptcy, subject to specified exceptions. If he fails to do so the property vests in the bankrupt and the creditors lose all rights to it. All parties concerned would know where they stand within a reasonable time. Although the section is not in force and will not apply to this case when it is, it can be taken as a strong indication of public policy, and the court should take into account that policy in deciding what is equitable.”

We agree that the overall purpose of the provision (summarised by Mr Davies as a “use it or lose it” purpose) is along the lines referred to by Lawrence Collins J, though that does not determine the question in this appeal since the question for us is as to detail.

Other changes introduced by the 2002 Act assist in determining our question. Section 313 gives the trustee the right to apply for a charging order over the bankrupt’s interest in the same sort of property as is described in section 283A. (By doing so, rather than leaving the equitable interest outstanding, the trustee can hold a final meeting under section 332 and vacate office.) Until amendments made by the 2002 Act the value secured by that charge was, or could be, up to the value of the interest from time to time. Thus the trustee would have the benefit of any increase in value of the property over the years until the charge was satisfied by payment. The 2002 Act introduced subsection (2A) which provided that the charged value in subsection (2) should be:

“the amount specified in the charging order as the value of the bankrupt’s interest in the property at the date of the order” [plus interest; emphasis supplied]

Thus the bankrupt, and not his estate, gets the benefit of any increase in value from the date of the order. The estate’s interest is fixed in monetary terms. So the combined effect of this amended section and section 283A is that the trustee has 3 years to apply for the charging order. If he does so within that 3 years, the value of his interest is fixed at the then value. If the trustee does not apply (and has not taken any other steps in relation to the interest) then the estate loses its interest. The interests of the bankrupt and the trustee are crystallised at that time in financial terms.

The other relevant new provision is section 313A, again introduced by the 2002 Act. This section (which we do not need to set out) effectively prevents the trustee from enforcing his rights over an interest in the relevant property where it is of low value (currently fixed at £1,000). Where that is the case any application for an order for sale, an order for possession or a charging order must be dismissed. So if the bankrupt’s interest has a very low value at the end of the third year of his bankruptcy, the bankrupt’s interest becomes unavailable to the trustee by a combination of the removal of any enforcement mechanism and then the lapse of 3 years under section 283A, so that any subsequent increase in value of that interest arising out of an increase in property prices accrues to the bankrupt who has reacquired his interest.

If one pulls these strands together the scheme of section 283A begins to emerge. It is as follows. We assume for the purposes of this paragraph a jointly owned home, and put on one side for the moment the possibility of a sale of the interest at a deferred consideration.

For the sake of completeness we observe that the same sort of position will be reached if the bankrupt is the sole owner of the home. In that case the trustee will be spared the necessity of having to fight a co-owner but he will still have to make up his mind what to do in the same way as outlined above.

There may be some other permutations, but that is the basic scheme which emerges from a consideration of the section. The central feature which emerges is that which appears in the underlined words - the trustee, if he can achieve anything worthwhile at all, gets the equivalent of the then value of the property and is not allowed to hang on for ever as a co-owner, waiting to see property values rise. The provisions also achieve a reasonable degree of certainty for the bankrupt and the co-owner in that by the end of the third year (or the end of litigation commenced within 3 years) they will by and large know whether the property has to be sold, how much the trustee will get out of the property, that the trustee will no longer be a co-owner, and that the opportunity to make money out of a rising market will not remain with the trustee (giving him an incentive to hang on for some considerable time) but will enure to the benefit of the bankrupt, the co-owner or some other assignee.

This certainty regime is not perfect, and the regime is not totally internally consistent, at least in theory. On any footing the trustee can sell the beneficial interest for cash to someone, who would then be able to sit and wait for property values to rise, and provide a source of an unknown and unpredictable future request for a sale or application for an order for sale. That possibility compromises the desire for certainty that otherwise seems to underpin the section. It might be thought to be as undesirable that such a person should sit and wait as for the trustee to do so (see the observations of Lawrence Collins J in Byford). However, that is not a particularly likely scenario. There is no market in beneficial interests in matrimonial homes; in general the only likely cash purchasers are the co-owner, or perhaps a member of the family. The same certainty objections do not arise when such person becomes a co-owner. If one is looking at out and out acquisitions, it is unlikely in practice that an unconnected third party would come in and occupy the same position as the trustee. So this compromise of the certainty objective is more apparent than real.

It can also fairly be said that the Act also permits a compromise of the certainty principle by allowing a charging order to be made. The existence of a charge over the interest creates the possibility of uncertainty as to when that charge will ultimately be enforced, if at all, by an application for an order for sale. However, the uncertainty of amount does not exist in this situation. The more limited uncertainty of time of enforcement generated by the existence of the charge (which is capable of being controlled by the court, since the charge is the creation of the court and not an act of the trustee) is, in our view, merely a limited inconsistency in the pattern and not something which fundamentally undermines what otherwise seems to be going on in the section and the Act as a whole.

Against that background it is now necessary to consider whether a sale of the beneficial interest in exchange for a future price, or a partially future price, would fit into that apparent background. Can it have been intended that such a transaction is a realisation within subsection (3)(a)? It seems to us that it cannot, for the following reasons:

There is therefore little or no support from the apparent scheme of the section for what would have to be an extended meaning of “realise”, and we have concluded that it does not have that extended meaning. We are aware that it might be thought that approaching the matter in this way involves setting up a scheme for the section which by its very nature tends to exclude deferred consideration transactions, and is therefore a flawed logical process, but that would miss the point. The real point is that a deferred consideration transaction looks incongruous when one looks at how the section (and the Act) works overall, and such incongruity is inconsistent with allowing “realise” to bear the meaning contended for by the trustee in this case.

We therefore conclude that “realises” in the subsection involves getting in the full cash consideration for the deal.

Mr Briggs would have us rely on matters pointing the other way. He points out, correctly, that Schedule 5 of the Act allows a trustee to sell in exchange for money “payable at a future time” (see paragraph 3), and says that this supports his submission that such a sale can be a realisation. The judge below also seems to have relied on that point at paragraphs 17 and 18 of her judgment, and paragraph 32 (cited above) also demonstrates that the point probably lay at the heart of her reasoning. We do not think that that provision assists. The point in this case is what is meant by “realise” in the Act (or, more precisely, in one particular provision, though as appears above it appears to have a uniform meaning throughout the Act). In order to “realise” assets the trustee can sell for future consideration. He has power to do so. But that is a different point from the question of when the realisation takes place, and says nothing about that latter point. It is quite consistent with that power that the realisation should only take place when all the cash is in. The deal done by the trustee in this case might have been technically within his powers, but it was not, at the point of time when it was entered into, a realisation. It was, at most, a step on the road to a realisation which would inevitably take place too late for the purposes of section 283A.

Nor are we convinced by Mr Briggs’s arguments that the section is not intended to prevent the trustee from doing the best deal that he can for the benefit of creditors. It actually seems designed to do just that, in that it tilts a balance back towards the bankrupt or his family. On any footing it imposes restraints which will work against the creditors. The real question is how far the restraints go in that direction, not whether they exist or not.

Mr Briggs also sought to rely on the fact that if Mr Davies were right, it would deprive a co-owner of the opportunity of buying out the trustee by instalments if those instalments went beyond the 3 year mark. That, he said, cannot have been Parliament’s intention. It would work an unfairness on both the spouse and the creditors. Mr Briggs is obviously right about the consequences of Mr Davies’s argument in this respect – the spouse would be thus deprived. But we consider it unlikely that Parliament would have had this effect in mind when creating the bigger picture, and in any event there would be a means of avoiding that consequence in appropriate circumstances. If the bankrupt consented to the transaction, and agreed to waive the re-vesting, we can see no objection to a spouse-instalment transaction taking place. Many bankrupts who wished to stay in the property with their spouses might well be prepared to allow such a thing to happen if the alternative was a loss of the home in a forced sale. We therefore do not think that this potential drawback points away from the interpretation of “realise” that we otherwise think to be correct.

In his skeleton argument Mr Davies sought to rely on the legislative history of the provision, starting with background consultation papers, moving through a White Paper, a private member’s original proposal and the ultimate ministerially-introduced final form of the provision. In his skeleton argument Mr Briggs disputed Mr Davies’s right to rely on this material, since he said it did not come within the Pepper v Hart principles, but said that in any event the material did not support Mr Davies’s case. This dispute was not developed in the oral submissions before us. Nor was any of the material deployed before Proudman J. It seems to us that the dispute as to the meaning of the word “realise” in this case justifies resort to proper Parliamentary material to try to see the mischief aimed at in, or the legislative intent behind, the provision, but the assistance given by that material is very limited. The White Paper deals with a different broad target of reducing bankruptcy stigma and disabilities, and the issues raised by what is now section 283A were not addressed by it. When the section was introduced by the minister on 17^th June 2002 she did so on such general terms that they do not assist in the analysis which we have to conduct. We therefore place no reliance on this material and prefer the schematic analysis that we have sought to carry out above.

We have also not taken any account of the following arguments or factors:

For the reasons given above we consider that “realise” in section 283A(3)(a) does not include effecting a sale for future cash consideration, at the stage before that cash is got in. That means that the transaction in this case does not fall within that provision, with the result that bankrupt’s interest has reverted to him and MPRL does not own any interest now. We emphasise that our reasoning depends on the fact that not all the cash to be obtained from the transaction was got in within 3 years. It does not depend on the contingent nature of MPRL’s obligation, though it is entirely in accordance with what we have found to be the scheme of the provision that such a device should fail. The reasoning of the judge seems to fail to distinguish between the concepts of sale and realisation, and the differing significance of the powers of a trustee in bankruptcy and the limits placed on the exercise of those powers, and is thereby flawed. We would, however, add that we are not convinced that she had the benefit of the full analysis of the use of “realise” and its derivatives to which we were treated. Nor did she have the benefit of Mr Davies’s powerful analysis of how the various sections interlock, which is reflected in this judgment. All these factors are highly material to our conclusion.

We therefore allow this appeal.