Supperstone v Lloyds Names Associations' Working Party and others




25 JUNE 1999

This is a signed judgment handed down by the judge, with a direction that no further record or transcript need be made (RSC Ord 59, r(1) (f), Ord 68, r1). See Practice Note dated 9 July 1990, [1990] 2 All ER 1024.

None stated at original source



EVANS-LOMBE J: The proceedings with which I am concerned arise in the bankruptcy of Christopher Derek Stockwell, to whom I will refer as "Mr Stockwell" and are brought by Anthony Peter Supperstone, his trustee in bankruptcy to whom I will refer as "The Trustee". Those proceedings seek to recover certain sums of money from three parties, an organisation called Lloyds Names Associations' Working Party to which I will refer to as "The Working Party", Mr Stockwell and Bradglade Ltd a company whose shares are held in the name of a family trust of Mr Stockwell's family for the benefit of his children. I will refer to the company hereafter as "Bradglade".

The proceedings were commenced by ordinary application in the bankruptcy dated 29 April of this year. I am concerned with the proceedings so far as they seek relief against Mr Stockwell and Bradglade. As a result of directions given in the proceedings by Mr Justice Rimer the Trustee has filed a statement of case against the respondents. The relief sought against Mr Stockwell and Bradglade is contained in paras 4 to 14 and 19 of the prayer to that statement of case. In summary the Trustee claims an account and payment of monies paid in respect of the services of Mr Stockwell by The Working Party and a Lloyds members action group known as the Devonshire Names Action Group ("DNAG") either to Mr Stockwell or to Bradglade or to Sarsden Services, a company owned and controlled by Mr Stockwell's wife as property acquired by Mr Stockwell after a bankruptcy order was made against him the right to which property vested in the Trustee under s.307 of the Insolvency Act 1986.

I have to deal with two applications. The first application is by the Trustee for the continuation of orders made by Mr Justice Jacob on an application by the Trustee without notice, and by Mr Justice Rimer for the purpose of preserving certain sums of money, part of the subject matter of the Trustee's claim until the trial of these proceedings. The second application is by Mr Stockwell and Bradglade and seeks an order to strike out the statement of case pursuant to CPR r 3.4 (2)(a) on the ground that it discloses no reasonable grounds for bringing the claim or, alternatively, for summary judgment against the Trustee pursuant to CPR 24.2 (a)(1) on the ground that the Trustee has no real prospect of succeeding in his claims. At the commencement of the hearing before me I acceded to the respondent's submission that I should deal with the application to strike out first since this could be dealt with relatively quickly and without necessitating recourse to the substantial body of evidence in the case and, if decided against the Trustee would conclude the matter.

The background facts from which the issues in this case arise are these: prior to 1992 Mr Stockwell was a member of Lloyds. In 1992 there took place the collapse of a number of Lloyds syndicates of which Mr Stockwell was a member and which resulted in claims against him by Lloyds in respect of calls. In that year Mr Stockwell joined DNAG, the Merrett (418) Names Association ("Merrett") and other Action Groups. The Working Party, the first respondent was established to co-ordinate the actions of various Lloyds Names Action Groups including DNAG and Merrett. In May of 1992 Mr Stockwell became Chairman of the Working Party. Bradglade was incorporated on 31 March 1992 it's shares being held by a family trust for the benefit of Mr Stockwell's children. On 14 July 1992 there came into existence a service contract between Mr Stockwell and Bradglade by which Mr Stockwell in exchange for a salary agreed to provide his services to third parties only through Bradglade. It is alleged by Mr Stockwell that on 3 May 1993 Bradglade entered into an agreement with the Working Party to provide Mr Stockwell's services to the Working Party against payment to or on behalf of Bradglade of its expenses incurred in performing the contract and a "honorarium" of £25 per hour for the time spent by Mr Stockwell in looking after the affairs of the Working Party. It is the Trustee's pleaded case in a proposed amendment put forward in the course of the hearing, that this agreement was not made if at all prior to 5 December 1996 and is a sham, alternatively, a colourable device to avoid the monies payable in respect of his services passing to his creditors and of no effect.

On 21 June 1994 a bankruptcy order was made against Mr Stockwell in the Banbury County Court on the petition of the Private Bank and Trust Company who were creditors for slightly less than 3m. Mr Stockwell had two other principle creditors, Lloyds in respect of calls from the Market for approximately 1.8m and the Royal Bank of Scotland for approximately £800,000.

Mr Stockwell was active in the defence of himself and other Lloyds Names and in the prosecution of claims by members against Lloyds and Lloyds underwriters. He was on the committee of a number of Lloyds Names Action Groups.

In July 1996 Lloyds made a Reconstruction and Renewal Settlement offer to it's members who were indebted to it for calls. That offer became unconditional as being accepted by more than half of the members on 4 September. In the autumn there appears to have taken place discussion in the Action Groups and the Working Party concerning the reimbursement of committee members of the Working Party in respect of expenses and time spent in the defence of member's interests and, in particular, the expenses of and time spent by, Mr Stockwell. It seems to have been agreed that a fund would be raised by deductions from sums recovered by members as a result of claims against Lloyds and Lloyds underwriters, the proceeds of which had been assigned to the various Action Groups, and by a levy on members, in order to pay, in the case of Mr Stockwell, those expenses and an increased "honorarium" for his time spent in the service of the Working Party. The total amount payable in respect of Mr Stockwell was agreed at £600,000.

Accordingly on 1 October a £20 per head levy was imposed by the Working Party on members of the various Action Groups to contribute to this fund. On 20 November 1996 Lloyds began to make payments to the Action Groups pursuant to the Reconstruction and Renewal Settlement. By December 1996 288.000 had been paid to the Working Party by Action Groups, from funds held by them, in respect of Mr Stockwell's services. On 20 December 41,707.56 became due from Merrett to the Working Party for this purpose and on 18 April 1997 842.44 became similarly due.

In April 1997 the Trustee started an extensive correspondence with the various Action Groups with a view to investigating Mr Stockwell's relationship with them and the Working Party in order to disclose whether there were sums paid to or on behalf of Mr Stockwell recoverable for the benefit of Mr Stockwell's creditors. It is Mr Stockwell's case that by this date the Trustee was aware of his service contract with Bradglade and of Braglade's contract with the Working Party. It is his case that Bradglade was an investment and property company with a business quite apart from the provision of Mr Stockwell's services to third parties, that his employment by Bradglade was properly recorded and accounted for, PAYE was deducted from his salary etc. and VAT was charged to the Working Party and the Action Groups and duly accounted for.

On 13 June there took place a public examination of Mr Stockwell which had been requisitioned by the Private Bank. At the close of the examination on that day application was made that it should be adjourned sine die. The effect of such an adjournment would have been to postpone indefinitely the automatic discharge from bankruptcy which Mr Stockwell would have become entitled to at the conclusion of the period of three years from the making of the bankruptcy order. Since the new regime introduce by the Insolvency Act 1986 the holding of a public examination of a bankrupt is an unusual event. The District Judge presiding over the examination declined to adjourn the examination in that way with the result that on 20 June Mr Stockwell was discharged from his bankruptcy.

Between July 1994 and June 1997 £368,543.81 was paid by the Working Party to Bradglade and £100,625 was paid by the Working Party to Sarsden Services. On 29 August 1997 £25,000 was paid by DNAG to Mr Stockwell in respect of his services.

On 5 September the first of a series of notices under s.307 was served by the Trustee on Mr Stockwell on this occasion claiming any payments received by Mr Stockwell from Action Groups of which Mr Stockwell was a committee member. A further notice under s.307 was served by the Trustee on Mr Stockwell on 26 November claiming payments by Merrett to the Working Party in respect of Mr Stockwell's services. On 11 November 1997 Merrett paid £42,500 to the Working Party in respect of Mr Stockwell's services. On 8 April 1999 a further s.307 notice was served on Mr Stockwell by the Trustee claiming the £25,000 paid to him by DNAG in August 1997 and also making a general claim for all monies paid by the Working Party to Bradglade in respect of Mr Stockwell's services from the commencement of his bankruptcy. On 19 April £105,000 was paid by the Working Party to Bradglade.

These proceedings were commenced by ordinary application on 29 April 1999 on which date an application without notice was made to Mr Justice Jacob as a result of which he made an order transferring the bankruptcy proceedings from the Banbury County Court to the High Court and various orders pending trial for payment by the respondents of sums of money, for the protection of documents and for the service on the respondents of interrogatories. The Trustee's application came on for hearing before Mr Justice Rimer inter partes on 25 May when evidence from the respondents was before the Court. He discharged Mr Justice Jacob's orders for payment and directed monies paid pursuant to those orders to be held in joint account pending this hearing. He made directions for the filing of further evidence in the Trustee's application, gave leave to the Trustee to amend his application, directed the service by the Trustee of a statement of his case and made orders for the provision of information by the respondents. Mr Justice Rimer also gave leave to Mr Stockwell and Bradglade to apply for summary judgment against the Trustee and directed that any such application be heard, if possible, at the same time as the Trustee's adjourned application for interim relief.

The Trustee's statement of case was served on 1 June. On 10 June Mr Stockwell and Bradglade applied to strike out that statement of case or, alternatively, for summary judgment against the Trustee in respect of the Trustee's claims against them. As I have said, when the matter came on before me I acceded to the respondent's application that their application to strike out be dealt with first. Accordingly that application was opened to me by Mr Marshall for the respondents. At the conclusion of that opening Mr Adkins for the Trustee sought leave to amend the statement of case to include a challenge to the bone-fides of the agreement between Bradglade and the Working Party of 3 May 1993. In doing so he accepted that, as it stood, the statement of case disclosed no cause of action because it did not make the necessary allegations which if made would make good a claim by the Trustee against Mr Stockwell and Bradglade for recovery of property vested in the Trustee under s.307. In order that such an amendment could be formulated I stood the case over until the following morning. The result was an amendment adding approximately 14 pages to the existing 8 pages of the statement of case.

Section 306 of the Insolvency Act 1986 vests the estate of the bankrupt existing at the date of the commencement of the bankruptcy in the Trustee. Section 307 deals with property of the bankrupt acquired by him after the commencement of bankruptcy, so far as relevant to these proceedings, as follows:

307(1) Subject to this Section and Section 309, the Trustee may by notice in writing claim from the bankrupts estate any property which has been acquired by or has devolved upon, the bankrupt since the commencement of the bankruptcy.

(2) A notice under this Section shall not be served in respect of -

(a) . . .

(b) . . .

(c) . . . any property which is acquired by, or devolves upon the bankrupt after his discharge.

(3) Subject to the next sub-section upon the service on the bankrupt of a notice under this section the property to which the notice relates shall vest in the Trustee as part of the bankrupts estate; and the Trustees title to that property has relation back to the time at which the property was acquired by, or devolved upon, the bankrupt.

. . .

(5) References in this section to property do not include any property which, as part of the bankrupts income, may be the subject of an income payments order under 310."

Section 309 proscribes time limits, inter alia, for the service of notices under s.307 which may not be served:

after the end of the period of 42 days beginning with the day on which it first came to the knowledge of the Trustee that the property in question had been acquired by, or had devolved upon, the bankrupt."

Section 310 deals with "income" to which the bankrupt becomes entitled after the commencement of the bankruptcy as follows:

310(1) The Court may, on the application of the Trustee, make an order ("an income payments order") claiming from the bankrupts estate so much of the income of the bankrupt during the period for which the order is in force as may be specified in the order.

(2) The Court shall not make an income payments order the effect of which would be to reduce the income of the bankrupt [when taken together with any payments to which sub-section 8 applies] below what appears to the Court to be necessary for meeting the reasonable domestic needs of the bankrupt and his family.

(3) An income payments order shall, in respect of any payment of income to which it is to apply, either-

(a) Require the bankrupt to repay the Trustee an amount equal to so much of that payment as is claimed by the order, or

(b) Require the person making the payment to pay so much of it as so claimed to the Trustee instead of the bankrupt . . .

(5) Sums received by the Trustee under an income payments order form part of the bankrupts estate.

(6) An income payments order shall not be made after the discharge of the bankrupt, and if made before, shall not have affect after his discharge . . .

(7) For the purposes of this section the income of the bankrupt comprises every payment in the nature of income which is from time to time made to him or to which he from time to time becomes entitled, including any payment in respect of the carrying on of any business or in respect of any office or employment . . ."

Section 307 vests any "property" within sub-section (1) in the Trustee in bankruptcy. "Property" is defined in s.436 as including:

money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of or incidental to property . . ."

The respondent's attack on the statement of case was made under two heads. The first was the submission that even if leave to amend were granted to include the amendments proposed by the Trustee the statement of case disclosed no cause of action because there was nowhere pleaded that any "property" as defined in s.436 had been acquired by or had devolved upon Mr Stockwell since the commencement of his bankruptcy for the purpose of s.307(1). Secondly, it was submitted that even if the payments pleaded in the statement of case could amount to "property" of Mr Stockwell they constituted his income subject to the making of income payment orders pursuant to s.310 and excluded from the ambit of s.307 by sub-section (5) of that section. It was too late for the Trustee to seek an income payment order in respect of the various payments pleaded because s.310(6) prescribes that such an order cannot be made after a bankrupt's discharge.

As required by authority I must approach an application to strike out a statement of case on the basis that the allegations made in that statement of case are borne out at the trial. I propose to do so treating the statement of case as if leave to amend it had been granted in the form submitted on behalf of the Trustee.

The payments which are said to constitute after acquired property of Mr Stockwell are described in paras 20 to 22, 24 to 26 and 28 of the statement of case. The reason why the payments as described were made is pleaded in paras 12 to 14 including new paras 14A and 14B and 16 to 19. In addition the circumstances for such payments are described in sub paragraphs (2) and (3) of the particulars to new para 26A containing the allegation that the agreement of 3 May 1993 was of no effect. It is of note that sub paragraphs (2) and (3) of those particulars refer to letters which themselves describe the proposed payments in respect of Mr Stockwell's services as "ex-gratia". It is also of note that whereas an attack is made on the agreement of 3 May 1993 no attack is made on the agreement of 14 July 1992 whereby Mr Stockwell made his services exclusively available to Bradglade. A copy of that agreement was in evidence.

Mr Adkins on behalf of the Trustee accepted that nowhere in the statement of case is pleaded any contract whereby Mr Stockwell became contractually entitled to receive any of the monies pleaded as having been paid in respect of his services. No claim is made that he became personally entitled to any part of those monies quantum meruit. It was submitted on behalf of the Trustee that the alteration of the rules of DNAG and Merrett to permit them to apply the funds of their members to constitute a fund from which payments could be made in respect of Mr Stockwell's services in some way created a trust for Mr Stockwell in which he acquired an interest once the fund for payment to him had been constituted. It was submitted that the judgment of Mr Justice Knox in Re Campbell (a bankrupt) (No 145 of 1995) [1997] Ch 14, [1996] 2 All ER 537 was authority for this proposition. In that case Mr Justice Knox decided that the expectation that the bankrupt had of receiving a sum of money from the Criminal Injuries Compensation Board could not be characterised as "property" within s.436 and therefore did not form part of her estate. It was a mere spes and not a chose in action there was no underlying property with which it could be associated. I was referred to page 240 of the [1996] BPIR report to the passage in Mr Justice Knox's judgement which reads:

Treating the matter as purely a matter of construction I am quite unable to accept that the word 'property' when it is used in the definition of property is intended to describe anything other than an existing item. In other words I do not accept that it is susceptible of referring to something which has no present existence but may possibly come into existence on some uncertain event in the future. There seems to me to be a very clear distinction between two situations. The first is when there is a contingent interest in property, for example, the right to receive £50,000 under a legacy contingently on attaining the age of 'X' years when one is 'X'-'Y' years old. That is an interest which is contingent and future but, if there is a trust fund - which I assume in my example there is - there is existing property in respect of which there is a contingent interest. That seems to me to be quite different from the second situation, the possibility of achieving an interest in something which presently does not exist but may exist in the future."

It does not seem to me that this passage in Mr Justice Knox's judgment is any authority for the Trustee's contention. True it is that there was constituted a fund which the Action Groups intended would be used to make payments to Mr Stockwell. But Mr Stockwell had no "contingent interest" in that fund of the type spoken of by Mr Justice Knox. In the example of the legatee there existed an enforceable right, pursuant to the will of the deceased, enforceable by the legatee on attaining the necessary age. In the present case there is no pleading of any relationship between Mr Stockwell, the Working Party and the Action Groups which would give Mr Stockwell a present or future right to claim any part of the fund. Mr Adkins contended that the pleaded resolutions of the Action Groups to constitute the fund from which payments to Mr Stockwell could be made gave such a right to Mr Stockwell to enforce payment to him. I am unable to see the legal basis for that submission. Contrary to Mr Adkins submission it seems to me that if at any time after those resolutions had been passed the Action Groups had changed their minds and passed further resolutions reversing the previous ones, Mr Stockwell would have been unable to complain. What is pleaded is an intended gift by the Action Groups to Mr Stockwell or to his family companies. It is well established by authority that an uncompleted gift, without more, does not create any sort of trust in favour of the intended donee.

While this judgment was in the course of preparation my attention was also drawn by Mr Adkins to the judgment of Warner J, in Re Rae [1995] BCC 102 as further authority for his submission. It does not seem to me that this case assists him. The "property" in question was an entitlement recognised by the Ministry of Agriculture as being incidental to the ownership of four fishing vessels which had already vested in the Trustee in the bankruptcy under s.306. There is no mention in the judgment of any interest under a trust. The Ministry were treating the right to obtain a further license as indefeasible. This is to be contrasted with the position of Mr Stockwell had the Working party or the Action Groups decided at the last minute to reverse their previous resolutions to make ex-gratia payments for the benefit of Mr Stockwell and his family companies.

In my judgment the statement of case does not plead anything in the nature of property within sub-section (1) of s.307 capable of vesting in the Trustee and which he can now claim. For these reasons it seems to me that the submissions of Mr Marshall for the respondents under his first head succeeds.

That is sufficient to dispose of the matter. Nonetheless I will go on to consider Mr Marshall's second ground of attack on the statement of case which, in my judgment, also succeeds.

Before considering whether the payments made to Mr Stockwell or to Stockwell family companies, as pleaded in the statement of case, can only be treated as income of Mr Stockwell and so excluded from s.307 recoveries by sub-section (5) of that section, I would wish to make two points. The first is that for the purposes of exercising a striking out jurisdiction I should disregard submissions that individual payments are irrecoverable because no notice covering the payment was served within the 42 day period of the payment coming to the notice of the Trustee as prescribed by s.309(1)(a). This is because the Court has power to extend time for the service of such a notice under s.309(1). The second point is that payments received after Mr Stockwell's discharge must be un-claimable by the Trustee under s.307, whether or not they are excluded as being income, unless they are paid as a result of some right to receive payment, a chose-in-action, to which Mr Stockwell became entitled during the bankruptcy and which has vested in the Trustee. No such chose-in-action is pleaded and I have rejected the Trustee's submission of the existence of a trust interest. Even if that rejection is wrong it is not clear from the pleading at what date is it alleged the fund was sufficiently constituted so that Mr Stockwell "acquired" an interest in it capable of vesting in the Trustee.

I will assume that the Trustee is able to prove that there took place all the payments pleaded in the statement of case and I will also assume that the Trustee makes good the contention pleaded at new para 26(A) so that all payments received by Stockwell family companies are to be treated as payments to Mr Stockwell.

Amongst the payments pleaded it is necessary to distinguish between those which the pleadings show were paid to the Working Party for the purpose of assembling the fund with which Mr Stockwell was to be paid and those which are shown to be payments out of the fund to Mr Stockwell or to Stockwell companies. Thus the payments pleaded at paras 20, 21 and 22 were payments plainly of the former character whereas those pleaded at paras 24, 25, 26 and 28 were of the latter.

The only payments "to Mr Stockwell" prior to his discharge are pleaded at paras 24 and 25 of the statement of case as follows:

24. In the period from July 1994 to June 1997 £368,543.81 was paid by LNAWP [the Working Party] to Bradglade in respect of the services of Mr Stockwell.

25. In the same period £100,625 was paid by the LNAWP to Sarsden Services all or some of which was in respect of the services of Mr Stockwell."

On the face of it, it is hard to see how payments pleaded as being made "in respect of the services of Mr Stockwell" to, it is to be assumed, Mr Stockwell, are not to be treated as income of Mr Stockwell for the purposes of s.307(5). All the more so where those payments are pleaded as being consequential on monies becoming "due in respect of the services of Mr Stockwell" see the amendments to para 22 of the statement of case.

At para 43 of the Trustee's written submissions it is submitted that:

the sums claimed by the Trustee were not income but were one-off payments which arose in the circumstances described . . ."

this submission was elaborated by Mr Adkins in his oral address.

The first point to be made is that even if that submission were correct it cannot apply to the payments pleaded at paras 24 and 25 which are not pleaded as one-off payments but rather as a series of payments over a period of three years totalling some £469,000.

The submission depends on a construction of s.310(7) where "income" for the purposes of that section is defined. It is submitted that the use in that section of the words "from time to time" imply that payments, to constitute "income", must be periodical. When Mr Adkins was pressed on this submission he submitted that this did not mean that payments had to be made at regular periodical intervals but rather when made they had to be shown to relate to money becoming due to the bankrupt regularly in respect of fixed periods. Mr Adkins submission was that this construction was in accordance with the plain meaning of sub-section (7). He could cite no authority for such a meaning being placed on such words as "from time to time becomes entitled" when used in other statutes or instruments.

I cannot accept this submission. I was referred to Stroud's Judicial Dictionary fourth edition and its entries in respect of the words "from time to time" and "at any time". There is no entry of any such a construction as is contended for by Mr Adkins appearing in Stroud in respect of the words "from time to time". Rather the entries support Mr Marshall's contention that in the context of s.310(7) "from time to time" means "at any time".

In Affleck v Hammond [1912] 3 KB 162 the Court of Appeal was considering the provisions of s.53(2) of the Bankruptcy Act 1883 in the context of an action by an un-discharged bankrupt, who was earning his living as a commission agent, in respect of the sum of 60 commission he alleged he had earned in obtaining for the defendant a loan. The issue before the Court was whether the claim vested in his Trustee in bankruptcy, under the then equivalent of the present s.306 of the 1986 Act, thus making him a nominal plaintiff and so bound to give security for costs. Section 53(2) of the 1883 Act was the predecessor of s.51(2) of the 1914 Act and was in substantially similar words. Side by side with this statutory jurisdiction the Courts exercised a common law jurisdiction in respect of earnings of a bankrupt which did not fall within those sub-sections treating them as vesting in the Trustee but able to be disposed of by the bankrupt in default of any intervention by the Trustee, such intervention only being effective to recover for the estate so much of the earnings as were not necessary for the support of bankrupt and his family. This is one of the areas of Insolvency Law where the 1986 Act made substantial changes. Both the previous statutory and common law jurisdictions are now subsumed in s.310 and the definition of "income" previously contained in s.51(2) of the 1914 Act, and its predecessors, has been substantially widened.

In Affleck v Hammond it had been found as a fact that the plaintiff bankrupt needed the whole of the commission for which he was suing for the maintenance of himself and his family. At page 171 of the report Lord Justice Buckley as part of the unanimous judgment of the Court of Appeal said this:

In the present action it has been sworn that whole sum is wanted for the maintenance of the bankrupt, and under the circumstances it is impossible to say that he is merely a nominal plaintiff suing for the benefit of an other person. It was on the ground that he was a nominal plaintiff that security was ordered by the Master. I do not say what ought to be done in cases where no part of the money sued for is required for the bankrupts maintenance. The substantial question in the case is, whether this money is personal earnings; if it is, the defendant's counsel admits that the case is unarguable. I am clearly of opinion that it is personal earnings; nonetheless because the money is the result of a single personal job with no element of periodicity, or periodical payment, about it. In fact, the distinction attempted to be founded on periodicity seems to me to be almost unintelligible."

For these reasons it seems to me that the Trustee's statement of case, even treated as amended in the manner proposed discloses no reasonable grounds for bringing the claim sought to be brought by the Trustee and should be struck out. I would add that had the proposed amendments been effective to make the statement of case disclose such a cause of action I would not have been minded to give permission to amend. The amendments, and in particular the inclusion of the new para 26(A) and the particulars pleaded under it amount to a charge of fraud against Mr Stockwell and Bradglade. It is tolerably clear that the documents and information which it is said support the proposed amendment have been in the hands of the Trustee for a reasonable period yet it is only at the last minute when the continuance of these proceedings hung in the balance that he sought permission to amend to include it.

Since the statement of case falls to be struck out it follows that the Trustee's claim advanced by his ordinary application filed on 29 April of this year must be dismissed and the orders of Mr Justice Jacob and Mr Justice Rimer must be discharged.

Judgment accordingly.

None stated at original source