Thornhill v Atherton & Ors

Thornhill v Atherton & Ors

The responsibility for the delay in raising the relevant facts, which led to the incurrence of substantial trustee's costs, lay with Mr Atherton or his solicitors. The trustee in bankruptcy, as an innocent third party, is entitled to be paid his proper costs. It is within the court's discretion to make the annulment of the bankruptcy order conditional upon payment of those costs by Mr Atherton, leaving him to pursue any remedies he may have against others.

Parties
Claimant/respondent: David Thornhill (Trustee in Bankruptcy of Clive William Atherton); Defendant/appellant: Clive William Atherton; Defendant/appellant: Linda Margaret Atherton; Defendant/appellant: Geoffrey Myerson
Jurisdiction
England and Wales
Judgment Date
20 December 2004
Procedural Posture
Civil Appeal / Appeal From Chancery Division to Court of Appeal
Outcome
Appeal dismissed; application to adduce further evidence refused; application for permission to appeal to the House of Lords refused; stay lifted.
Legal Topics
Bankruptcy Annulment, Trustee's Costs, Ancillary Relief, Abuse of Process, Solicitor Negligence
Insolvency Law Family Law Bankruptcy Annulment Trustee's Costs Ancillary Relief Abuse of Process Solicitor Negligence

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Parties

David Thornhill (Trustee in Bankruptcy of Clive William Atherton)

Claimant/respondent

Clive William Atherton

Defendant/appellant

Linda Margaret Atherton

Defendant/appellant

Geoffrey Myerson

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Chancery Division to Court of Appeal

Legal Issues

  1. 1 Whether the annulment of a bankruptcy order should be conditional on payment of the trustee's costs
  2. 2 Who should bear the trustee's costs when a bankruptcy order is annulled under section 282(1)(a) of the Insolvency Act 1986
  3. 3 Whether the delay in raising the relevant facts was the fault of the bankrupt or his solicitors

Ratio Decidendi

The responsibility for the delay in raising the relevant facts, which led to the incurrence of substantial trustee's costs, lay with Mr Atherton or his solicitors. The trustee in bankruptcy, as an innocent third party, is entitled to be paid his proper costs. It is within the court's discretion to make the annulment of the bankruptcy order conditional upon payment of those costs by Mr Atherton, leaving him to pursue any remedies he may have against others.

Court Disposition

Appeal dismissed; application to adduce further evidence refused; application for permission to appeal to the House of Lords refused; stay lifted.

Orders

  • Appellant to pay Respondent's costs, such costs to be the subject of a detailed assessment.
  • Annulment of bankruptcy order to be conditional on payment of trustee's costs.