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Pickard & Nilsson v Constable (2017)

A district judge was deemed to have failed to properly consider the alternative of a shorter period of suspension of an order for possession and sale by Trustees in Bankruptcy, pursuant to s335A IA 1986, and his decision was overturned.

The sale was originally ordered by the district judge to be postponed until the earlier of the vacation of the property by the Bankrupt’s husband, or his death. He was in his 60s and had a serious health condition. However, there was no evidence to justify this decision, and a period of 12 months was substituted. He suffered from an autoimmune condition, however no evidence was brought from a medical expert who had examined him recently. Evidence was simply given by him and his carer.

As per the presumption established in Stack v Dowden, the home was owned 50:50 between the wife’s Trustees and the husband.

‘Exceptional circumstances’ were established under s335A(3), but it was argued by the Trustees that the district judge’s conclusions lacked the supporting evidence required.

It was found that the district judge had reached this conclusion on the general ‘feel’ of the case rather than an objective assessment of the evidence.

The judge stated that where a medical condition is an issue, such medical evidence must be up to date, and relevant to the condition and the likely effect of the decision to evict. Grounds of a lack of available alternative accommodation must address the specific housing needs relevant to the case.

Even where there are ‘exceptional circumstances’, the court will still consider the creditors’ interests to be paramount; can it be considered proper that an order for possession and sale be suspended for many years to the detriment of creditors?

Posted: 17.07.2018
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