Chu v Price

Where a debtor has held himself out under the name used in a bankruptcy order, and the creditor intended to contract with and bankrupt that person, the court may amend the full title after the order to add aliases. The application may be determined summarily where the evidence shows no real prospect of a defence based on identity or inducement. Contemporaneous documents, matching signatures, admissions, settlement offers and conduct in related proceedings may outweigh a late assertion that another person bears the same name. A procedural failure to list aliases in the petition does not prevent amendment. On appeal, the question is whether the first-instance judge was entitled to reach that conclusion on the evidence.

Independent Trust and Finance Ltd lent money under an agreement made in the name of Michael Yee Cam Chu. The respondent, Michael Yee Fun Chu, accepted signing the agreement but later asserted that Cam was another person and that he was only a guarantor. A bankruptcy order was made against Cam. On the trustee’s application under Insolvency Rule 6.35(1), District Judge Cernik amended the full title to add six aliases. Deputy Judge McDonnell QC allowed the appeal and dismissed the trustee’s application. The trustee appealed. The central issues were whether the two names identified the same contracting debtor, whether the creditor intended to proceed against him, and whether the identity case had a real prospect of success.

Appeal allowed unanimously. Arden LJ delivered the leading judgment. Laws LJ agreed, and Simon Brown LJ expressed a brief concurring view. The trustee was entitled to an order adding the respondent’s aliases, with costs here and below.

1. Insolvency Rule 6.35(1) gave the court jurisdiction, after the bankruptcy order, to amend the full title of the proceedings. The principle in Re Myles (1891) 8 Mor 255 applied: where a person holds himself out as another person and credit is extended in that name, a bankruptcy order may be made against the true person under the assumed name, with the appropriate aliases.
2. The relevant appellate question was whether the district judge was entitled, on the evidence, to conclude that there was no real prospect of a successful defence to the amendment application. The High Court judge erred by determining the application afresh and dismissing it.
3. The contemporaneous documents, the respondent’s matching signatures, his admissions of liability, settlement offers, attendance at the oral examination and failure to raise the identity case until August 2001 provided abundant evidence that he had used the name in the agreement and that the creditor intended to deal with and bankrupt him. Evidence that another person with that name existed did not establish that the other person was liable under the loan agreement.
4. The court accepted the analogy with correcting a party’s name after expiry of the limitation period under CPR 17.4(3), including the authority of Singh v Atombrook Ltd [1989] 1 WLR 810. Failure to include the alleged aliases in the petition under Insolvency Rule 6.7 was an irregularity which did not prevent amendment. The asserted Consumer Credit Act, guarantor and limitation defences were not fully argued or raised by respondent’s notice; any genuine identity issue would have required trial before summary amendment.

The High Court order was set aside. The district judge’s order was restored in substance. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — [2003] EWCA Civ 1744: allowed the trustee’s appeal and ordered amendment of the bankruptcy proceedings to include the aliases.
• High Court of Justice, Chancery Division — Deputy Judge John McDonnell QC, 19 June 2003: allowed the appeal from District Judge Cernik and dismissed the trustee’s application.
• Northampton County Court in Bankruptcy — District Judge Cernik, 21 October 2002: amended the bankruptcy order dated 5 October 2001 to add six aliases.