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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jackson v Bell & Anor  EWCA Civ 387 (15 March 2001)
Cite as:  BPIR 612,  EWCA Civ 387,  Fam Law 879
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Anthony Mann QC)
15th March 2001
B e f o r e :
LORD JUSTICE SEDLEY
|- v -|
|BELL AND ANOTHER||Respondent|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020-7421 4040 Fax No: 020-7831 8838
(Official Shorthand Writers to the Court)
Crown Copyright ©
15th March 2001
"There does not appear to be a point of principle justifying a second tier appeal. The decision was one depending on discretion. The human rights submission adds nothing. Doreen Bell is only entitled to a half share. That is what she will get."
(1) Is a spouse with a property adjustment order in her favour a creditor within the meaning of those words in sections 382 and 383 of the Insolvency Act 1986, so that a transaction in her favour might be a preference within section 340?
(2) Can transactions of a nature normally effected by an order of the Family Division, and made between husband and wife, constitute a transaction at an undervalue and therefore liable to be set aside under section 339 at the instance of a trustee in bankruptcy?
(3) In the light of the terms of section 335A and Article 8 of the Convention on Human Rights, is the construction and application of section 335A given in this case by the district judge and the judge on appeal the appropriate one in view of the competing interests?
"On such an application the court shall make such order as it thinks just and reasonable having regard to --
(a) the interests of the bankrupt's creditor;
(b) where the application is made in respect of land which includes a dwelling house which is or has been the home of the bankrupt or the bankrupt's spouse or former spouse."
"(c) all the circumstances of the case other than the needs of the bankrupt."
"Where such an application is made after the end of a period of one year, beginning with the first vesting under Chapter 4 of this part of the bankrupt's estate in trustee, the court shall assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt's creditors outweigh all other considerations."
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the protection of the rights and freedoms of others."
Order: Application allowed. No order as to costs. Stay of execution granted. Liberty to the Trustee in Bankruptcy to apply in writing on seven days' notice.