Hunt & Anor v Conwy County Borough Council

These are the appeals of Steven James Hunt (“Mr Hunt”) and Gloria June Hunt (“Mrs Hunt”), who is Mr Hunt’s mother, from orders made in the Caernarfon County Court by Judge Jarman QC (sitting in Cardiff) on 17 August 2012 (in the case of Mr Hunt) and 5 November 2012 (in the case of Mrs Hunt). Permission to appeal was refused in respect of both orders by the judge but was granted by Mr Justice Sales in respect of Mr Hunt’s appeal on 6 December 2012 and in respect of Mrs Hunt’s appeal on 30 January 2013.

Mr Hunt and Mrs Hunt have acted in person, as they did in the court below. Both addressed me although Mr Hunt was the principal spokesman.

The orders appealed against relate to applications issued out of the Caernarfon County Court on 14 November 2011 in the bankruptcy proceedings of Mr Hunt. By those applications Mr Hunt and his mother sought vesting orders under section 320 of the Insolvency Act 1986 (the 1986 Act”). The relevant provisions under which they qualified to apply were section 320(2)(c) in the case of Mr Hunt and section 320(2)(a) in the case of Mrs Hunt. The applications related to the land and property known as The Victoria Pier and Foreshore, the Promenade, Colwyn Bay, Conwy LL29 8HH as the same had been registered at HM Land Registry under Title Number WA727155 (“the Pier”).

According to the evidence before the court below, the Pier dates back to 1900. Following a fire in the main pavilion building (forming a part of the Pier) in 1922 and a second pavilion in 1933, the current pavilion was opened in 1934. In 1991, after the Pier had passed through various ownerships, the pavilion again caught fire. For a number of years after this event the Pier remained closed. In 1993 permission was granted for the pavilion and seaward the end of the Pier to be demolished although this was never carried out. Following two further changes of ownership, Mr Hunt acquired the Pier on 11 December 2003. He reopened it in January 2004 announcing an intention gradually to restore the Pier’s structure. On or about 2009, however, the respondent (“the Council”) classified the Pier as a dangerous structure.

The Council was not named as a respondent to either of the applications upon their issue. On 23 April 2012, Judge Jarman QC made an order for the Council’s substitution as respondent, effectively in place of the Crown Estate Commissioners who had had ownership of and responsibility for the Pier following its disclaimer by his trustee in bankruptcy. This had come about because upon disclaimer the Pier had escheated to the Crown. On 27 March 2012 (as I shall shortly relate) the Council became the freehold owner of the Pier and the Crown Estate Commissioners no longer had any interest in it.

There was before the court below on the hearing of Mr Hunt’s application in August 2012 a witness statement by him dated 9 May 2012 which purported to be a consolidated witness statement incorporating evidence on behalf of both himself and his mother. There was also before the court a witness statement by Peter Brown, a solicitor and Head of Regulatory Services at the Council, dated 11 July 2012. For the hearing of Mrs Hunt’s application in November 2012 there was a further witness statement, dated 29 October 2012, by Mrs Hunt. In addition, Mr Victor Hunt (Mrs Hunt’s husband) swore an affidavit dated 16 April 2013, very shortly before these appeals were heard. No permission had been granted for the service of that further evidence but I nevertheless read it. It added some detail to matters which were, in any event, summarised in the judgment of Judge Jarman QC in the court below to which I shall shortly come.

On 11 December 2003 the Pier was acquired by Mr Hunt. The price he paid for it was £100,000. He was registered as proprietor of the Pier at HM Land Registry on 8 April 2004. He was shown as its sole proprietor. There was no notice of any third party interest held by his mother.

On 9 October 2007 the Council made statutory demand of Mr Hunt for £5,144.88 in respect of rates and council tax. The particulars of debt within the demand indicated that the sum claimed was made up of two claims for rates and two claims for council tax. Each claim for rates and council tax was based on a liability order made against him.

On 30 January 2008 a bankruptcy petition was presented by the Council in the Caernarfon County Court against Mr Hunt based on his failure to comply with the statutory demand. On 17 July 2008 a bankruptcy order was made and Roderick Michael Withinshaw or Royce Peeling Green Ltd (“the trustee”) was appointed as trustee of his bankruptcy estate. The automatic effect of section 306 of the 1986 Act was to vest in his trustee all property comprised in the bankruptcy estate (as defined in section 283 of the 1986 Act) without the need for any conveyance, assignment or transfer. The estate included Mr Hunt’s entire interest in the Pier. Mr Hunt, however, remained the registered proprietor of the Pier although a bankruptcy restriction was entered against the title under section 86(4) of the Land Registration Act 2002.

On 15 April 2010 the trustee wrote to Mr Hunt informing him of his duty as trustee to realise his interest in the Pier for the benefit of creditors. The trustee enclosed a notice in Form 6.83 asserting that the Pier fell within section 283A(1) of the 1986 Act. That section, to which I shall come, 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 (so far as currently relevant) the bankrupt.

By an application dated 8 July 2011 the trustee applied for, among other relief, an order for the delivery up of possession and sale of the Pier.

By a notice dated 18 August 2011, the trustee gave notice under section 315 of the 1986 Act disclaiming all interest in the Pier. The notice, which was in the prescribed form (Form 6.61), was signed by the trustee. It contained a note stating that a copy had been filed at the court (Caernarfon County Court) on 19 August 2011.

On such last mentioned date, 19 August 2011, DJ Williams made an order dismissing the trustee’s application for possession and sale dated 8 July 2011. The order recited that the trustee had disclaimed his interest in the Pier pursuant to section 315 of the 1986 Act.

On 14 November 2011, which was almost 3 months later but nevertheless within time, the applications were made by Mr Hunt and his mother for vesting orders in respect of the Pier (under section 320(3)(c) of the 1986 Act in the case of Mr Hunt and section 320(2)(a) in the case of Mrs Hunt) to which I have earlier referred. At that stage HM Attorney-General and a firm of solicitors were named as respondents to the applications.

On 23 February 2012 Mr and Mrs Hunt jointly applied for summary judgment on their respective vesting order applications.

In the meantime, on 27 March 2012, the freehold in the Pier (and, as I understood it, the foreshore on which it stood) was granted and transferred by the Crown Estate Commissioners (exercising powers under the Crown Estate Act 1961 and section 79(1) of the Land Registration Act 2002) to the Welsh Government (acting by The Welsh Ministers) and, by the same instrument, was transferred by the Ministers to the Council (as sub-purchaser). The transfer by the Crown Estate Commissioners was expressed to be subject, inter alia, to all third party interests in the Pier, including the right of any person to obtain a vesting order in respect of it. This was a reflection of the fact that the Pier’s disclaimer by the trustee, whereby the Pier had escheated to the Crown (so that the freehold interest therein became extinguished), did not thereby also extinguish, but was subject to, any outstanding interests in or over the freehold interest (see Scmlla Properties Ltd v Gesso Properties (BVI) Ltd [1995] BCC 793 at 806-808).

On 23 April 2012 Judge Jarman QC dismissed the application for summary judgment and, as I have mentioned, substituted the Council as sole respondent to the applications.

On 17 August 2012 Mr Hunt’s application was dismissed. His mother’s was adjourned. That adjourned hearing came on before Judge Jarman QC on 5 November 2012 when it too was dismissed. It is against those dismissals that these appeals are now made.

In his judgment dated 17 August 2012 dismissing Mr Hunt’s application, Judge Jarman QC held that the whole of Mr Hunt’s interest in the Pier vested in the trustee (upon his appointment when the bankruptcy order was made). After noting the council’s acceptance that there was a dwelling-house in the Pier’s main pavilion and that it was “Mr Hunt’s accommodation at the time of the bankruptcy order” (by which I understood him to mean that it was his sole or principal residence within the meaning of section 283A of the 1986 Act at that time) he held that for the purposes of the hearing before him he was willing to find that the dwelling-house remained Mr Hunt’s sole or principal residence at the date of the disclaimer, ie 18 August 2011, even though, as he recorded Mr Hunt having told him, the dwelling-house ceased to be his sole or principal residence as from 29 June 2012. He held nevertheless that section 320 of the 1986 Act contemplated, where the application for a vesting order was made, as Mr Hunt’s was, on the footing that the disclaimed property was property in a dwelling-house (see section 320(2)(c)), that the whole of the disclaimed property was property in a dwelling-house. He held that that was not so in the case of the Pier as only a part of it was a dwelling-house. He rejected Mr Hunt’s submission that the whole of the Pier (including the whole of the pavilion in which the dwelling was situated and the foreshore on which the Pier stood) was to be so regarded. In so stating he held that only that part of the pavilion which had been adapted for use and occupation as a dwelling constituted the “dwelling-house” for the purpose of section 320. He found that the section did not enable the court to vest part only of the disclaimed property in an applicant. He went on to say that if he was wrong about that he would not exercise the court’s power by vesting a part only of the Pier in Mr Hunt, namely that part which constituted the dwelling-house.

In his judgment dated 5 November 2012 dismissing Mrs Hunt’s application for an order under section 320(3)(a) vesting the Pier - the whole of it - either in Mr Hunt or, alternatively, herself, Judge Jarman QC accepted the submission made by Mr Louis Doyle (appearing in the court below for the Council as he does before me) that, in accordance with Stack v Dowden [2007] UKHL 17, it was for Mrs Hunt to prove the interest upon which she relied where, as was the case before him, she needed to show that the beneficial interest in the Pier was not in the person in whose sole name the legal ownership of the property had been vested, namely Mr Hunt (her son). As to this the judge said that he was not satisfied that Mrs Hunt had discharged that onus. He was not therefore satisfied that the beneficial title in the Pier should not follow the legal interest. On that footing, he continued, he was not satisfied that Mrs Hunt had an interest in the Pier as defined by section 320(2)(a) of the 1986 Act. The judge then summarised the findings which he had reached on the issues raised at the earlier hearing of Mr Hunt’s application, which Mrs Hunt had sought to raise again on the later occasion, and added that if he was wrong about Mrs Hunt’s interest in the Pier (i.e. that she could establish none) he would not have exercised his discretion to vest the Pier in her.

Mr Hunt began by challenging the validity of his bankruptcy and the entitlement of the Council to be the respondent to the appeal. There is no merit in either objection: it is far too late to take issue with the making of the bankruptcy order (and the grounds of appeal attached to the notice of appeal do not even seek to challenge the making of that order) and there is no basis for disputing the Council's standing as respondent. As regards the latter, the fact is that there has been no attempt to appeal Judge Jarman QC’s order of 23 April 2012 substituting the Council as respondent and, so far as I was able to a discern, no basis shown for doing so.

Mr Hunt complained of the late service of Mr Doyle’s skeleton arguments. The skeleton argument in his own appeal was served a day late. Mr Hunt had adequate time to consider it. In any event, I asked him if he required an adjournment. I rose briefly to enable him to consider if he did. He said that he did not. It is convenient to add at this point that Mr Hunt also criticised the late service of Mr Doyle’s skeleton argument in his mother’s appeal: it was served a day before the hearing. But this was entirely the consequence of Mrs Hunt’s failure to serve on the Council any papers in her appeal, not least her grounds for appeal or even a transcript of the judgment of 5 November 2012, until a couple of days or so before the hearing. In the circumstances, there can be no basis for complaint that Mr Doyle's skeleton argument came as late as it did. As with Mr Hunt’s appeal I asked whether an adjournment was needed to enable Mr Hunt and his mother to consider its contents. I was told that this was not needed.

Mr Hunt advanced three related submissions on the application to his bankruptcy of section 283A of the 1986 Act. This provision (the so-called “use it or lose it” provision) was inserted into the 1986 Act by section 261 of the Enterprise Act 2002 to prevent the practice of some trustees in bankruptcy of delaying the realisation of the bankrupt’s house for the benefit of his creditors until, in some cases, years had passed. Section 283A subjects the trustee to time limits if he wishes to realise or take other steps in relation to the bankrupt’s home. It provides, so far as material, 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 the 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….]

The provision assumes that there was property comprised in Mr Hunt’s estate which consisted of an interest in a dwelling-house and which, at the date of his bankruptcy (17 July 2008) was his sole or principal residence. The Council accepted that this was so.

Mr Hunt’s first point was that his trustee was out of time in pursuing any of the actions set out in subsection (3) with the result that, as provided by subsection (2), the interest in the dwelling-house ceased to be comprised in his bankruptcy estate and re-vested in him. His basis for so submitting was the date on the notice of hearing of the application. It was dated 18 July 2011 and gave notice of a hearing on 3 August 2011. Mr Hunt submitted that 18 July was to be taken as the date when the application was issued and, as such, was outside the three-year time limit.

However, according to paragraph 15 of Judge Jarman QC’s judgment on Mr Hunt’s appeal, the application was received by the Caernarfon County Court on 12 July 2011. This date is repeated in paragraph 23 of the judgment. The assumption must, I think, be that the information available to the court below (presumably from the court file) was to the effect that the trustee’s application was received by the court, at the latest, on 12 July 2011. The judge therefore found that the application was in time.

I see no basis for disturbing that conclusion. The expression “applies” appearing in subsections 3(b) and (c) must mean filed with, or received by, the court. The date on the application – in this case, it was 8 July - is not necessarily determinative as the trustee may have held back sending the application to the court after the application had been prepared and dated, or it may have been delayed in the post. Equally, however, the date when the court issues the notice of hearing – which would be dependent on when the court officer comes to deal with the application – is no indication of when the application is received by the court. In these circumstances I am of the view that if Mr Hunt was to mount a successful challenge to the judge’s reference to 12 July as the date when the application was received by the court he would have needed to point to something on the file to indicate that the date in question was not 12 July but in truth a later date. He was unable to do so. The notice of hearing was alone insufficient for that purpose.

Mr Hunt’s next point was that even if the application was in time it was dismissed on 19 August 2011 by DJ Williams with the consequence that, as provided by subsection (4), the interest to which the application related, namely the Pier (or at any rate that part of it which consisted of the dwelling-house) ceased to be a part of Mr Hunt’s bankruptcy estate but automatically re-vested in him.

It is not evident that this point was taken in the court below but, in any event, it is without merit. This is because on 18 August 2011, which was the day before DJ Williams’ order, the trustee disclaimed the Pier. Assuming for the moment that this was a valid disclaimer (Mr Hunt disputes that it was) there ceased from the moment of disclaimer to be any basis for the trustee to pursue his application for sale and possession. That is why, on 19 August, DJ Williams dismissed the application. It is to be noted that his order doing so recites the fact of the disclaimer (“…And Upon the Trustee having disclaimed his interest in the Pier pursuant to S.315 Insolvency Act 1986 Act…”). If the disclaimer was indeed valid there was nothing in the bankruptcy estate to re-vest in the bankrupt: it had already ceased to form a part of that estate. In short, the order made was premised upon the prior disclaimer; subsection (4), by contrast, assumes that at the time of dismissal the interest in question continues to form a part of the bankrupt’s estate.

This brings me to the third of Mr Hunt’s related points on section 283A. This was that it was in some way improper or an abuse to allow the trustee by the simple expedient of issuing an application for sale or possession to “borrow” (Mr Hunt’s expression) time - beyond the expiry of the three-year period - to enable him within such window of borrowed time to disclaim an asset and, by so doing, deprive the bankrupt of the chance of securing its re-vesting in him under subsection (4). The court, he said, should not countenance a loophole in the legislation of this kind.

I do not see why the trustee should not proceed in the way that Mr Hunt’s trustee evidently did. The court has power in any event to extend the three-year period: see subsection (6). DJ Williams could as easily have extended the three-year period by, say, five weeks (so that it continued beyond 18 August) as proceed simply to dismiss the application. The order’s intent was plain: it was to put an end to an application which, given the disclaimer, no longer had any purpose. It was not in any sense intended to enable Mr Hunt to reclaim the Pier or any part of it.

This brings me to Mr Hunt’s next submission which was that there was no valid disclaimer. There was a disagreement between him and Mr Doyle over whether this submission was pursued by him in the court below. There is no mention of it in the judgment. Indeed, Mr Doyle submitted that it was inappropriate for Mr Hunt to pursue such a line of argument since his and his mother’s applications for vesting orders under section 320 had as their very basis that there was a valid disclaimer. As I am of the view that the points which Mr Hunt makes are without merit I shall deal with them even though they may not have been pursued in the court below and are certainly not dealt with in the judgments under appeal.

It is first necessary to set out the relevant provisions.

315 Disclaimer (general power)

(1)

Subject as follows, the trustee may, by the giving of the prescribed notice, disclaim any onerous property and may do so notwithstanding that he has taken possession of it, endeavoured to sell it or otherwise exercised rights of ownership in relation to it.

(2)

The following is onerous property for the purposes of this section, that is to say--

(a)

any unprofitable contract, and

(b)

any other property comprised in the bankrupt's estate which is unsaleable or not readily saleable, or is such that it may give rise to a liability to pay money or perform any other onerous act.

(3)

A disclaimer under this section--

(a)

operates so as to determine, as from the date of the disclaimer, the rights, interests and liabilities of the bankrupt and his estate in or in respect of the property disclaimed, and

(b)

discharges the trustee from all personal liability in respect of that property as from the commencement of his trusteeship,

but does not, except so far as is necessary for the purpose of releasing the bankrupt, the bankrupt's estate and the trustee from any liability, affect the rights or liabilities of any other person.

(4)

A notice of disclaimer shall not be given under this section in respect of any property that has been claimed for the estate under section 307 (after-acquired property) or 308 (personal property of bankrupt exceeding reasonable replacement value) [or 308A] except with the leave of the court.

(5)

Any person sustaining loss or damage in consequence of the operation of a disclaimer under this section is deemed to be a creditor of the bankrupt to the extent of the loss or damage and accordingly may prove for the loss or damage as a bankruptcy debt.

318 Disclaimer of dwelling house

Without prejudice to section 317, the disclaimer of any property in a dwelling house does not take effect unless a copy of the disclaimer has been served (so far as the trustee is aware of their address) on every person in occupation of or claiming a right to occupy the dwelling house and either--

(a)

no application under section 320 is made with respect to the property before the end of the period of 14 days beginning with the day on which the last notice served under this section was served, or

(b)

where such an application has been made, the court directs that the disclaimer is to take effect.

320 Court order vesting disclaimed property

(1)

This section and the next apply where the trustee has disclaimed property under section 315.

(2)

An application may be made to the court under this section by--

(a)

any person who claims an interest in the disclaimed property,

(b)

any person who is under any liability in respect of the disclaimed property, not being a liability discharged by the disclaimer, or

(c)

where the disclaimed property is property in a dwelling-house, any person who at the time when the bankruptcy petition was presented was in occupation of or entitled to occupy the dwelling house.

(3)

Subject as follows in this section and the next, the court may, on an application under this section, make an order on such terms as it thinks fit for the vesting of the disclaimed property in, or for its delivery to--

(a)

a person entitled to it or a trustee for such a person,

(b)

a person subject to such a liability as is mentioned in subsection (2)(b) or a trustee for such a person, or

(c)

where the disclaimed property is property in a dwelling-house, any person who at the time when the bankruptcy petition was presented was in occupation of or entitled to occupy the dwelling house.

(4)

The court shall not make an order by virtue of subsection (3)(b) except where it appears to the court that it would be just to do so for the purpose of compensating the person subject to the liability in respect of the disclaimer.

(5)

The effect of any order under this section shall be taken into account in assessing for the purposes of section 315(5) the extent of any loss or damage sustained by any person in consequence of the disclaimer.

(6)

An order under this section vesting property in any person need not be completed by any conveyance, assignment or transfer.

Trustee's notice of disclaimer

6.178.—(1) Where the trustee disclaims property under section 315, the notice of disclaimer shall contain such particulars of the property disclaimed as enable it to be easily identified.

[(2) The notice of disclaimer must be authenticated and dated by the trustee.]

[(3) As soon as reasonably practicable after authenticating the notice of disclaimer, the trustee must —

(a)

file a copy of the notice with the court; and

(b)

in any case where the disclaimer is of registered land as defined in section 132(1) of the Land Registration Act 2002, send a copy of the notice to the Chief Land Registrar.]

(4)

For the purposes of section 315, the date of the prescribed notice is that which is endorsed on it, and on the copy, in accordance with this Rule.

Communication of disclaimer to persons interested

6.179.—(1) Within 7 days after the day on which a copy of the notice of disclaimer is returned to him, the trustee shall send or give copies of the notice (showing the date endorsed as required by Rule 6.178) to the persons mentioned in paragraphs (2) to (5) below.

(2)

Where the property disclaimed is of a leasehold nature, he shall send or give a copy to every person who (to his knowledge) claims under the bankrupt as underlessee or mortgagee.

(3)

Where the disclaimer is of property in a dwelling-house, he shall send or give a copy to every person who (to his knowledge) is in occupation of or claims a right to occupy, the house.

(4)

He shall in any case send or give a copy of the notice to every person who (to his knowledge)—

(a)

claims an interest in the disclaimed property, or

(b)

is under any liability in respect of the property, not being a liability discharged by the disclaimer.

(5)

If the disclaimer is of an unprofitable contract, he shall send or give copies of the notice to all such persons as, to his knowledge, are parties to the contract or have interests under it.

(6)

If subsequently it comes to the trustee's knowledge, in the case of any person, that he has such an interest in the disclaimed property as would have entitled him to receive a copy of the notice of disclaimer in pursuance of paragraphs (2) to (5), the trustee shall then forthwith send or give to that person a copy of the notice.

But compliance with this paragraph is not required if—

(a)

the trustee is satisfied that the person has already been made aware of the disclaimer and its date, or

(b)

the court, on the trustee's application, orders that compliance is not required in that particular case….

Disclaimer presumed valid and effective

6.185.

Any disclaimer of property by the trustee is presumed valid and effective, unless it is proved that he has been in breach of his duty with respect to the giving of notice of disclaimer, or otherwise under sections 315 to 319, or under this Chapter of the Rules.

Mr Hunt advanced two arguments for contending that the trustee’s purported disclaimer was of no effect. The first was that the Pier was not “onerous property” within the meaning of section 315(2). The only applicable part of that provisions was paragraph (b):

“Any other property comprised in the bankrupt’s estate which is unsaleable or not readily saleable, or is such that it may give rise to a liability to pay money or perform any other onerous act.”

He submitted that the property was not of that kind in that two cash offers had been made for it - “were on the table” as he described them - at the time of the disclaimer. He referred me to paragraphs 54 to 57 of Mrs Hunt’s witness statement of 29 October 2012 where there is mention of an offer by her of £50,000 for the Pier made to the trustee in the course of correspondence between her and solicitors acting for the trustee in the days immediately before the notice of disclaimer. The witness statement went on to refer to an offer of £35,000 for the Pier made by the Council and referred to her belief that the trustee’s actions “render the disclaimer invalid in law” in accordance with IR 6.185, which she then recited. But the statement then continued:

“The Trustee’s stated reason for disclaiming was the Pier being a potential liability due to a repair notice issued by the Respondents. That is both irrelevant and irrational, given that the Respondent was also trying to buy the interest in the Pier for £35,000 at that time, and clearly would not enforce the notice whilst trying to purchase; quite apart from anything else, such actions would be open to challenge as being coercive. Furthermore, the Respondents had issued I believe 9 various notices and letters over the previous 3 years regarding repairs to the Pier, which the Trustee chose to ignore on each occasion. If the Trustee was genuinely concerned about his liability, he would have disclaimed upon receipt of the first, or any of the subsequent 8 notices, significantly all received at a time when he had no cash offers for his interest in the Pier whatsoever. However, disclaiming carried the likely “risk” of his interest in the Pier reverting to Mr Hunt under section 320, a situation the Trustee stated to the respondents in writing he assumed would “not be in the interests” of the Respondents. The Trustee’s action in disclaiming is considered “Wednesbury unreasonable”. The Trustee should be held to account for his actions before the Court, with all the correspondence between the Trustee and the Respondents laid bare for scrutiny. Indeed, we are considering referring this matter to the High Court for Judicial Review.”

As I have stated, Mr Doyle had no recall of any submission based upon this passage and there is no reference to the matter in the judgment below. In this connection it is to be noted that the court below had no evidence from the trustee, who was not a party to the applications, and it is far from obvious what the precise basis was for the disclaimer. That said, it is not the case that to be “onerous” within the meaning of section 315(2)(b) the property must be either unsaleable or not readily saleable. It may consist of property of a kind that “may give rise to a liability to pay money or perform any other onerous act”. If, as Mrs Hunt’s witness statement assumed, the trustee had been served with repair notices (issued, as it happens, by the Council) the probability must be that the condition of the Pier was such as to give rise to a liability to pay money or perform any other onerous act and, as such, the Pier amounted to onerous property and therefore capable of disclaimer under section 315. To some extent this is speculation on my part. The evidence of just what the trustee did and why is absent. This failure is not to be laid at the Council’s door. It suffices that I am far from persuaded that the trustee was not entitled to take the view that the Pier was onerous property.

I am also of the view that it was far too late, very many months later, when an application for a vesting order was before the court which assumed the validity of the disclaimer, to seek to run an argument that, in truth, there was no valid disclaimer either because the property was not “onerous” within the meaning of section 315 or because the trustee’s act in seeking to disclaim the property was in some other way open to challenge.

That brings me to the next basis of challenge which is that, the Pier being registered land, the trustee failed in breach of IR 6.178(3)(b) to send a copy of the disclaimer notice to the Chief Land Registrar, a circumstance which, it was submitted, displaced the presumption enshrined in IR 6.185 that the disclaimer was otherwise valid and effective. That presumption, said Mr Hunt, was displaced because the failure to send a copy of the disclaimer notice to the Chief Land Registrar constituted a breach of the trustee’s duty “with respect to the giving of notice of disclaimer…or under the Chapter of the Rules”: see IR 6.185.

This point was not dealt with by the court below and, so far as I can see, was not in any way foreshadowed in the evidence before it. I shall nevertheless deal with the point.

At the outset it is worth observing that it is far from clear that a copy of the disclaimer notice was not given to the Chief Land Registrar. There is no evidence on the matter. The most that can be said is that a copy of the register of the Pier’s title showing the entries in the register on 7 February 2012 (the copy I was shown was I understand in evidence before the court below) continues to refer to Mr Hunt as the proprietor and makes no reference to any disclaimer. My understanding of Registry practice is that where a freehold title has been disclaimed, the registrar may (but will not necessarily) maintain the title on register and may (but will not necessarily) enter a note on the register of the fact of the disclaimer. I would nevertheless have expected some note to have been entered if the Registry had been notified of the disclaimer.

But assuming for the sake of argument that no copy of the disclaimer notice was given the Chief Land Registrar and that that failure constituted a breach by the trustee of his duty with respect to the giving of notice of disclaimer, it does not follow that the disclaimer was for that reason invalid and ineffective. Under the 1986 Act a notice of disclaimer is to be “by the giving of the prescribed notice” and “operates so as to determine, as from the date of the disclaimer, the rights, interests and liabilities of the bankrupt and his estate in or in respect of the property disclaimed…”: see section 315(1) and 315(3)(a). The notice was in the prescribed form and gave the particulars and was authenticated and dated in accordance with the requirements of IR 6.178(1) and (2). A copy of the notice was filed with the court (on 19 August 2011). On the face of it the disclaimer was fully valid and effective.

The requirement to send a copy to the Chief Land Registrar, in the case of registered land, like the obligation on the trustee enshrined in IR 6.176 to send or give copies of the notice to the various categories of person mentioned in paras (2) to (5) of that rule, cannot have the automatic consequence, by the operation of IR 6.185, that upon establishing - it may be many months or even years later - that the failure by the trustee to send or give a copy of the notice to a person falling within one of those categories renders the disclaimer invalid and effective. Take, for example, IR 6.179(5) which requires the trustee, where the disclaimer is of an unprofitable contract, to send or give copies of the notice to all such persons as, to his knowledge, are parties to the contract or have interests under it. Suppose it turns out that, by an oversight, there was someone within that category to whom, although known to the trustee at the time, no copy was given. It cannot be supposed that that oversight, discovered possibly many months if not years later, should render the disclaimer invalid.

All that IR 6.185 does is to displace the presumption of validity. It does not go further and render the disclaimer invalid and of no effect. Much clearer wording would be needed if that was the legislative intention. Where Parliament has intended such a consequence from a failure of that kind it says so. Thus, section 317 (concerned with the disclaimer of leaseholds) in terms provides, by sub-section (1), that the disclaimer of leasehold property “does not take effect unless a copy of the disclaimer has been served (so far as the trustee is aware of the their addresses) on every person claiming under the bankrupt as underlessee or mortgagee …” Likewise, section 318 provides that disclaimer of a dwelling-house “does not take effect unless a copy of the disclaimer has been served (so far as the trustee is aware of their addresses) on every person in occupation of or claiming a right to occupy the dwelling-house …” The obvious purpose of giving such notice is to enable the person so notified either to challenge the validity of the disclaimer or, if otherwise eligible, to apply for a vesting order under section 320. (Mr Hunt has not suggested that that provision was not satisfied in his case by the service on him of a copy of the disclaimer within the stipulated period.) The requirement to send a copy of the notice to the Chief Land Registrar stands, in my judgment, on a different footing. Its purpose is to enable the Land Registry to make an appropriate entry on the title to the property disclaimed to reflect the fact of the disclaimer. The requirement to give such a notice is a consequence of the disclaimer; it is not a prerequisite to its validity.

Mr Hunt’s further points on section 320 related to the scope of its operation. He had two arguments. Both assumed that the disclaimer was valid. The first was that the dwelling-house, of which at the time the bankruptcy petition against him was presented he was (as the Council accepted) in occupation, was to be taken as the whole of the property which the trustee disclaimed, in short that the dwelling house and its curtilage were to be equated with the Pier as a whole (including the foreshore on which it stood). He submitted that the court below was wrong to come to a contrary view. The second was that if he was wrong about that and he was in occupation of something less than the whole of the Pier, the court nevertheless had power under section 320 to make a vesting order in his favour in respect that part the Pier that did constitute his dwelling house. He submitted that the court below was wrong to conclude that its power under section 320 did not extend to make a vesting order in respect of a part only of the disclaimed property.

The first of those arguments is untenable. Section 385(1) of the 1986 Act defines “dwelling-house” as including “any building or part of a building which is occupied as a dwelling and any yard, garden, garage or outhouse belonging to the dwelling-house and occupied with it”. Judge Jarman QC dealt succinctly with the matter in paragraph 28 of his judgment:

“…[Mr Hunt] maintained that having a regard to … the definition of a dwelling-house in the definition section in the 1986 Act, the whole of the pavilion, the Pier and Foreshore should come within the definition of the dwelling-house. He likened the decking and the struts of the Pier to a yard within that definition and that part of The Foreshore on which The Pier stands as a garden within that definition. I cannot accept those submissions. That is not in my judgment what the statutory provision contemplated when it defined a dwelling-house to include a yard and a garden. In my judgment the dwelling-house in this case is confined to that part of the pavilion which is adapted for use and occupation as a dwelling.”

I am in complete agreement with what is said there.

The second argument turns on the correct interpretation of section 320 and in particular on whether in a case where, as here, the applicant qualifies under section 320(2)(c), his occupation of the disclaimed property as a dwelling-house must be of the whole of the disclaimed property and, even if that is not necessary, whether the order made must relate to the whole of the disclaimed property or can be limited to that part of what was disclaimed which, at the time that the bankruptcy petition was presented, was occupied as a dwelling-house. The view of Judge Jarman QC was that section 320(3) which defines what order the court may make proceeds on the basis that the order, if made, relates to “the vesting of the disclaimed property…”, ie, all of the disclaimed property. In short, he was of the view that there was nothing in the section to indicate that the order could be confined to a part only of the disclaimed property.

At first blush this approach has much to commend it. Thus, section 320(2)(c) refers to “where the disclaimed property is property in a dwelling-house” (emphasis added) rather than “includes” property in a dwelling-house. It suggests that the dwelling must extend to the whole of the disclaimed property. Likewise, section 320(3) does not provide for the vesting of “some or all” of the disclaimed property but merely for the vesting of “the” disclaimed property, i.e. all of it. That said, it might seem odd if not perverse that where a distinct part of the disclaimed property comprises a dwelling-house (to take that example) but an equally distinct part of the disclaimed property is not within that definition, either there should be no power in the court to make a vesting order at all or, if there is power, the court’s order cannot be confined to the dwelling-house but instead must extend to the whole of the disclaimed property.

It is to be noted that where a lease has been disclaimed under section 317, section 321(2) assumes that an order under section 320 may relate to only part of the property comprised in the lease. That provision provides that “For the purposes of an order under section 320 relating to only part of any property comprised in a lease, the requirements of sub-section (1) [directed to the liabilities and obligations to which the applicant for the order is to be made subject] apply as if the lease comprised only the property to which the order relates”. It is also to be noted that section 320(3) - the provision which provides for the making of a vesting order - enables the court to make an order “on such terms as it thinks fit”.

I have come to the view that the court’s power under section 320(3) is not confined to all of the disclaimed property or to none. In my judgment it is capable of relating to a part only of the disclaimed property. Equally, I do not consider that to qualify under section 320(2)(c) the whole of the disclaimed property must comprise a dwelling-house. It is open to the court to entertain an application under section 320(2)(c) notwithstanding that the applicant occupies only a part of the disclaimed property as his dwelling-house and it is open to the court, on such an application, to make an order which, depending on the circumstances of the case, may be of a part only or of all of the disclaimed property. To that extent I have reached a different conclusion from the judge below.

But Judge Jarman QC went on the consider whether, if he was wrong about the scope of section 320 and a vesting order could be made in respect of a part only of the disclaimed property, it would be appropriate to do so. At paragraph 37, he said that he was not persuaded that it would be a proper exercise of his discretion to do so. Mr Hunt submitted that the judge exercised his discretion on a wrong basis, that is therefore open to review and that if he had approached the matter correctly he would have made a vesting order.

Four points weighed with the judge in his refusal to make a vesting order on Mr Hunt’s application. The first was the serious condition of the Pier and its possibly hazardous condition to passers-by. The second was that the dwelling-house was no longer fit for human habitation so that if that part of the Pier were to be vested in Mr Hunt it would be of no “practical benefit” to him. The third was that the legal title to the Pier had been the “subject of legitimate acquisition” by the Council. The fourth was that since the Pier had come under the Council’s management any vesting order in Mr Hunt’s favour might frustrate any proper plans the Council might have for the Pier as a whole even though it had not yet decided what to do with it, had no available funding to carry out any necessary works to it and had unsuccessfully bid for Lottery funding.

The court has a discretion under section 320(3) whether to make an order in favour of a qualifying applicant. Except that there are limits to what the court may order when the applicant qualifies under section 320(2)(b) and certain requirements exist where the vesting order relates to property of a leasehold nature (see sections 320(4) and 321), the discretion is at large in the sense that the legislation provides no guidance as to how it is to be exercised. In the absence of some competing applicant for a vesting order and in the absence of some good reason to the contrary, I would have thought that the court’s discretion ought ordinarily to be exercised in favour of the qualifying applicant, at any rate where the interest in the property in question is a freehold interest in land. The bankrupt’s estate is no longer interested since, by the disclaimer, the trustee makes clear that he has no further wish to exploit the disclaimed property for the benefit of the bankruptcy estate. The interest of the Crown arises, so to speak, by default in that the consequence of the disclaimer has been to cause the property to revert automatically to the Crown.

In the instant case, there is no competing applicant for a vesting order: Mrs Hunt, if she also qualifies (a matter I come to later), is content that an order should be made in her son’s favour. No interest or argument against the making of a vesting order is advanced by the trustee on behalf of Mr Hunt’s bankruptcy estate.

That leaves simply the Council’s four factors which found favour with the judge below. I cannot see that the fact that the Pier is in a serious state of disrepair and a danger to passers-by, which was the first of the four, is a reason against making a vesting order. The Pier’s condition is unaffected by the identity of the person in whom it is vested. Whatever statutory powers exist to ameliorate the Pier’s condition or to prevent it from constituting a danger to the public are unaffected by the making or withholding of a vesting order. There is no suggestion in the four factors which Judge Jarman QC took into account that a vesting order in Mr Hunt’s favour would inhibit the exercise of those powers. The fourth factor - that a vesting order might frustrate the Council’s plans for the Pier - cannot carry any much if any weight where, as the judged recorded, the Council itself had no plans for it and no funding to carry out any necessary works. That factor would have to be weighed, as it seems to me, against Mr Hunt’s plans for the Pier about which the judgment is silent. Whether he had any and, if he did, whether they had any chance of fulfilment simply does not appear. For if Mr Hunt had plans for the Pier, and they have a prospect of being carried out, and the Council has none, it is difficult to see why the making of an order vesting the Pier in Mr Hunt should be refused on account of the Council’s non-existent plans for it. Nor is it apparent to me what weight is to be attached to the fact that the Council has legitimately acquired ownership of the Pier. All land is owned by someone: any applicant for a vesting order in respect of any freehold must assume ownership in someone. In this case, Mr Hunt’s application was made at a time when the Pier was in the ownership of the Crown; it was only later that the Crown transferred the Pier to the Welsh Ministers and by them to the Council. Moreover, the transfer was expressly made subject to the rights of any person to obtain a vesting order in respect of it. At the most this can carry only very slight weight.

That brings me to the second of the four factors: that the dwelling-house was no longer fit for human habitation (and had in any event ceased on 29 June 2012, which was some months after Mr Hunt had issued his application, to be his main dwelling) so that a vesting order would be of no “practical benefit” to him. Assuming “practical benefit” to mean that he could not immediately resume occupation, why should this be a reason against the making of a vesting order? If, as I understood to be the case, Mr Hunt was planning to restore the Pier why should the current disrepair to the dwelling be a reason for refusing to make an order? It is not apparent to me - and the judge's statement of his reasons for refusing to make an order do not mention - whether Mr Hunt’s plans included the restoration of the dwelling and, if they did, whether they envisaged him taking up residence in it once rendered fit for human habitation. Even if Mr Hunt’s plans did not envisage him taking up residence that would be no more than a factor to be weighed in the overall balance, taking into account matters which it is relevant to consider (one of which, I agree with the judge below, would be that it is only because Mr Hunt was in occupation of a dwelling-house forming a part of the disclaimed property at the time the bankruptcy petition was presented against him that he had any locus at all to seek a vesting order) and ignoring those that are irrelevant. It is not therefore apparent to me, reviewing his reasons as a whole, that the judge approached the exercise of the discretion in a correct manner.

In these circumstances I am of the view that the judge’s exercise of his discretion cannot stand and that to that extent Mr Hunt’s appeal succeeds. I will return later to what should be done once I have dealt with Mrs Hunt’s appeal.

Before doing so I should mention one other submission advanced by Mr Hunt. It assumed that his mother was able to establish that she had contributed to the acquisition of the Pier so as to have an interest in it. He submitted that because of that interest the Pier was held by the two of them on a trust for land and as consequence, when he was bankrupted, the Pier did not become vested in his trustee. The argument had as its premise that he and his mother were joint owners in law of the Pier. But that was wrong. Only Mr Hunt was at any material time the owner in law. The court below was correct to dismiss this argument.

That brings me to Mrs Hunt’s separate position. This gives rise to two issues over and above those matters raised by Mr Hunt’s appeal and dealt with above.

The first is whether Judge Jarman QC was correct to find that Mrs Hunt had not discharged the onus upon her of showing that the beneficial title in the Pier was other than solely in the person – her son – in whom the legal interest was vested. In finding that she had not, the judge noted that when the matter was before him on 17 August 2012 he had acceded to an application by Mrs Hunt to adjourn her application to enable her to deal with a submission made on behalf of the Council that, even if the evidence justified a finding that Mrs Hunt had contributed £50,000 towards her son’s acquisition of the Pier, nevertheless there was a lack of evidence as to the common intention of herself and Mr Hunt when the Pier was purchased to justify a finding that she had an interest in it as a result of that contribution. He noted that further orders were made in the course of Mrs Hunt’s application for further evidence to be filed and that a further statement from Mrs Hunt had indeed been filed, on 29 October 2012. The judge then summarised what that statement set out. This was to the effect that she had invested £50,000 from a joint account in the name of herself and her husband, Victor, in a property venture of Mr Hunt (junior) by transferring it to their son for investment by him and two others in a property in Ely, that, however, the transfer was carried out by her husband (and by means of a transfer from the joint account into an account in his own sole name and thence by a cheque for £50,000 drawn by him in favour of his son), that £50,000 out of the sale proceeds of the Ely property when it came to be sold some time later were then used as part of the £100,000 needed to acquire the Pier in December 2003. The judge said that he was not satisfied that the contribution to the price paid for the Pier’s purchase came from her. He said that he was left without any proper explanation as to why the monies in question were “put into the sole account of Mr Hunt [i.e. Mr Hunt senior] on his instruction and why the monies were paid to Mr Hunt junior on the instruction of his father.” In so finding he stated (at paragraph [18]):

“I accept those payments were made [£50,000 arising from the sale of the Ely property which could be followed into the purchase of the Pier] but I am not satisfied that Mrs Hunt has discharged the onus of showing that the beneficial interest should not follow the legal interest in this case. I am not satisfied that the monies came from her. I am left without an explanation, a proper explanation in my judgment, as to why the monies were put into the sole account of Mr Hunt [senior] on his instructions and why the monies were paid to Mr Hunt junior on the instruction of his father. That being so, I am not satisfied that Mrs Hunt has an interest in the Pier as defined in Section 320(2)(a) of the 1986 Act.”

If he was wrong about that and Mrs Hunt could establish a beneficial interest in the Pier the second issue was whether he was wrong to refuse to exercise his discretion to vest the Pier in her.

I consider that the judge was justified in concluding that Mrs Hunt had not discharged the onus on her of showing that, despite the fact that title to the Pier had been in her son alone, she had a beneficial interest in it. Mr Hunt criticised the judge’s references to what was said by Baroness Hale in Stack v Dowden. He submitted that that case was concerned simply with a domestic relationship and was inapplicable to the circumstances of his mother’s investment. I consider that the criticism is unjustified and that it is plain that the passages from the speech of Lady Hale to which reference was made (in particular, at [56] of Stack v Dowden) are of general application.

It is true that the evidence indicated that Mrs Hunt had a share in the net sale proceeds of a property investment by herself and her husband and that £50,000 came out of the joint account in which those proceeds were held and could be followed via Mr Hunt’s investment, with two others, in the Ely property into the money used by him to acquire the Pier two years later. Mrs Hunt’s difficulty was in explaining why the £50,000 came via her husband (who was as much entitled as she was to the monies standing in their joint account). She might well have overcome that difficulty if she had been willing to submit to cross-examination at the hearing of her application. But she refused to be cross-examined. I am satisfied that she was given ample chance to reconsider her refusal. The judge said so in paragraph 16 of his judgment and there is no reason to question what he stated about the matter. Her protestations to me that she had wanted to know before going into the witness box what she would be asked about, that she did not understand what was involved and that, in any event, the need for her to go into the witness box was unexpected and sprung on her without warning do not alter the fact that she was given sufficient time to reconsider her initial refusal but was unwilling to withdraw that refusal.

This means that it is unnecessary to consider the second issue raised by Mrs Hunt’s appeal, namely the exercise by the judge of his discretion whether to make a vesting order if he was wrong about Mrs Hunt having a proprietary interest in the Pier. That must not be taken to mean that I would have found nothing to criticise in the reasons which the judge gave for refusing to make a vesting order in her favour. Over and above the factors which he had considered which concerned the exercise of discretion on Mr Hunt’s application (other than the state of the dwelling which did not apply to Mrs Hunt’s application) and on which I have already commented, there was only one matter which the judge mentioned. That was that if Mrs Hunt did have a beneficial interest in the Pier the Council would hold its title subject to that interest and “Mrs Hunt…has not ever had or indeed sought before this application to have any part of the legal title vested in her.” I feel bound to say that I cannot see why that fact should be of any materiality. For so long as her son was the registered owner of the Pier I can well understand why, assuming she had a beneficial interest in it, Mrs Hunt might have been content that he should remain as the sole proprietor. Once he was bankrupted and the trustee had evinced an intention, by disclaiming it, to divest the estate of its interest in the Pier I can understand why Mrs Hunt might wish at that stage to apply to take over its ownership and management. It is not apparent why the fact that she had not previously sought to appear on the title should weigh against her on the exercise of the discretion. If therefore it had been necessary to review the correctness of the exercise of discretion by the judge I would have found that exercise to be flawed and one that could not be permitted to stand.

Having regard to the first of the two points, however, I am satisfied that Judge Jarman QC was correct to dismiss Mrs Hunt’s application.

The most sensible course is, I consider, to remit Mr Hunt’s application to the court below for a reconsideration of the exercise of the discretion whether to make a vesting order in his favour and, if so, whether the order should be of the whole or a part only of the Pier and accompanying foreshore. I do not feel that, sitting in an appellate capacity where I have been taken to some but by no means all of the evidence that was before the court below and there may well be facts relevant to the exercise of the discretion of which I am unaware, I am in a position to evaluate the material considerations. The person best placed to do so is Judge Jarman QC. (I should also comment that the appeal bundles were, through no fault of the Council, unpaginated and disordered so that I found it extremely difficult to locate documents referred to in the grounds of appeal, witness statements or skeleton arguments.) It will be for him to determine how to go about this remitted hearing.

I have pondered on whether I should permit Mrs Hunt, by volunteering unconditionally to be cross-examined on her evidence, to seek to persuade the court below that she does indeed have a beneficial interest in the Pier. Mr Doyle is recorded by the judge in his judgment dismissing Mrs Hunt’s appeal as accepting that if she does have such an interest the Council holds its title subject to that interest. That suggests an acceptance by the Council that this is a question which has yet to be determined. The evidence certainly indicated that half of the money paid by Mr Hunt to acquire the Pier in late 2003 came indirectly from the proceeds of a joint investment by Mrs Hunt and her husband. The question is whether Mrs Hunt is able to show that the money was hers, can be traced into the Pier and that its use in the purchase was intended by her and Mr Hunt (her son) to give her a beneficial interest in the Pier. There is much to be said for having that issue definitively determined as between Mrs Hunt and the Council and, if she succeeds, deciding whether a vesting order should be made in her favour. Since Mr Hunt’s application will be remitted for the discretion to be determined afresh the convenience of dealing at the same time with Mrs Hunt’s claims would seem to have much to commend it. I would prefer to hear from Mr Doyle and the Hunts before deciding whether this course is open to me and if it is whether I should accede to it.