Oraki v Hall

Notice under CPR 83.13(8) need not take the form of an application notice. The question is whether the occupant received sufficient notice of the proceedings to enable an application for relief. Serious non-disclosure on an urgent without-notice application, together with failure to notify the respondent or explain that failure, may justify discharging the resulting order. A bankruptcy discharge does not automatically extinguish the administration of the bankruptcy estate or prevent creditors proving in the bankruptcy. The jurisdiction under section 375(1) of the Insolvency Act 1986 is wide but exceptional and cannot be used to repackage arguments previously determined.

The applicants, Sheida Oraki, Ardeshir Oraki and Mr Parast, sought to suspend, rescind or revoke a writ of possession concerning the applicants’ former home. The writ had been obtained by Michaela Hall, trustee in bankruptcy, following earlier possession orders made in the administration of the applicants’ bankruptcies.

The applications relied on alleged lack of notice, material non-disclosure, limitation under the Insolvency Act 1986, non-compliance with CPR 83.2, invalid appointments of successive trustees, alleged third-party beneficial ownership and the effect of bankruptcy discharge. Hall sought discharge of an earlier without-notice suspension order and an exclusion order.

1. Hall’s application succeeded. The letters sent on 20 November 2018 to the applicants and occupiers gave sufficient notice for CPR 83.13(8). That rule does not require service of an application notice. The court adopted the approach in Gupta v Partridge and distinguished Secretary of State for Defence v Nicholas, where no written warning of impending eviction had been given.

2. The applicants’ failure to disclose the letters to Barling J materially misled the court about the factual basis of the urgent without-notice application. Their failure to give Hall prior notice of the application, and to explain that failure as required by CPR 25.3(3), aggravated the non-disclosure. The suspension order was therefore discharged.

3. On reconsideration, there was no proper basis to suspend the writ. Prospective claims against the Solicitors Regulation Authority Compensation Fund and former solicitors were speculative. Alleged third-party beneficial interests did not prevent enforcement against occupants and could be advanced independently. The proper administration of the bankruptcy estates required Hall to obtain possession and establish the true beneficial ownership.

4. The challenge under section 375(1) of the Insolvency Act 1986 failed. The jurisdiction is exceptional and requires circumstances materially different from those previously before the court. It cannot be used to repackage the same arguments or mount an indirect appeal. The redacted trust deed did not meet that threshold.

5. The section 283A challenge was misconceived because a timely application for possession had been made in 2008 and the resulting possession order had not been dismissed. CPR 83.2 did not apply to Hall’s 2017 application, which sought enforcement and directions concerning existing possession orders rather than permission to issue a writ after six years.

6. Discharge from bankruptcy did not wipe the slate clean. Section 281(1) preserved the right of a creditor to prove in the bankruptcy, and administration of the estates continued after discharge. The further applications were dismissed. A future execution date was to allow a reasonable period for the applicants and other occupiers to vacate, and an exclusion order was to be made.

First-instance decision. The judgment records earlier Court of Appeal decisions concerning the applicants’ bankruptcies and trustees, but those decisions were not under appeal in the present proceedings.