Insolvency Act 1986, section 285

Restriction on proceedings and remedies

Part IX Bankruptcy

(1)At any time when [F715proceedings on a bankruptcy application are ongoing orF715] proceedings on a bankruptcy petition are pending or an individual has been [F716madeF716] bankrupt the court may stay any action, execution or other legal process against the property or person of the debtor or, as the case may be, of the bankrupt.

(2)Any court in which proceedings are pending against any individual may, on proof that [F717a bankruptcy application has been made orF717] a bankruptcy petition has been presented in respect of that individual or that he is an undischarged bankrupt, either stay the proceedings or allow them to continue on such terms as it thinks fit.

(3)After the making of a bankruptcy order no person who is a creditor of the bankrupt in respect of a debt provable in the bankruptcy shall—

(a)have any remedy against the property or person of the bankrupt in respect of that debt, or

(b)before the discharge of the bankrupt, commence any action or other legal proceedings against the bankrupt except with the leave of the court and on such terms as the court may impose.

This is subject to sections 346 (enforcement procedures) and 347 (limited right to distress).

(4)Subject as follows, subsection (3) does not affect the right of a secured creditor of the bankrupt to enforce his security.

(5)Where any goods of an undischarged bankrupt are held by any person by way of pledge, pawn or other security, the official receiver may, after giving notice in writing of his intention to do so, inspect the goods.

Where such a notice has been given to any person, that person is not entitled, without leave of the court, to realise his security unless he has given the trustee of the bankrupt’s estate a reasonable opportunity of inspecting the goods and of exercising the bankrupt’s right of redemption.

(6)References in this section to the property or goods of the bankrupt are to any of his property or goods, whether or not comprised in his estate.

Definitions used in section 285 1

the debtor

(2) In Schedule 6 “the debtor” means the company or the individual concerned.

Defined in s.386(2) · see it in the full Act

Cases considering section 285 79

Secretary of State for Work and Pensions v Payne and another

[2011] UKSC 60 · 14 December 2011Interprets

The prohibition on remedies against a bankrupt’s person or property encompasses benefit deductions used to recover a pre-bankruptcy debt. The Secretary of State loses the deduction power when the bankruptcy order is made (see paras [22]–[24]; [31]–[34]).

Mohammad Razi Khan v Arvinder Singh-Sall & Anor

[2023] EWCA Civ 1119 · 6 October 2023

The court applied the statutory bar preventing a creditor with a provable debt from commencing proceedings against the bankrupt without leave before discharge. This supported the view that limitation should not ordinarily run against such a creditor during bankruptcy. (see paras [77]-[79])

Michael Wilson & Partners Ltd v Sinclair & Ors

[2021] EWCA Civ 505 · 16 April 2021Interprets

Section 285(1) gives the insolvency court a discretionary power to stay proceedings, including an application for a third party debt order. Its availability does not displace the mandatory prohibition in section 285(3)(a). (see paras [24]; [36]) Section 285(2) was contrasted with section 285(3)(a). It confers a discretionary power on the court in which proceedings are pending, whereas section 285(3)(a) imposes a mandatory prohibition. (see paras [24]; [36]) After a bankruptcy order, a creditor with a provable debt cannot obtain a final third party debt order over a debt owed to the bankrupt. A final order is a proprietary remedy against the bankrupt’s chose in action, not merely an unenforced money judgment. (see paras [24]-[29]; [37]-[47]) The words permitting proceedings with the court’s leave qualify section 285(3)(b) only. They do not qualify the separate prohibition on remedies in section 285(3)(a). (see para [41])

59 more judgments, and what each says about section 285, are in the case-law panel in the full Act.

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F715Words in s. 285(1) inserted (6.4.2016) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 19 para. 16(2)(a); S.I. 2016/191, art. 2 (with art. 3)
  2. F716Word in s. 285(1) substituted (6.4.2016) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 19 para. 16(2)(b); S.I. 2016/191, art. 2 (with art. 3)
  3. F717Words in s. 285(2) inserted (6.4.2016) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 19 para. 16(3); S.I. 2016/191, art. 2 (with art. 3)

Modifications

  1. C982S. 285 applied with modifications by S.I. 1986/1999, art. 3, Sch. 1 Pt. II
  2. C983S. 285 excluded (25.4.1991) by Companies Act 1989 (c. 40), ss. 154, 155, 161(4), 182(4), Sch. 22 para. 5(2); S.I. 1991/878, art. 2, Sch. .
  3. C984S. 285(3) modified (25.4.1991) by Companies Act 1989 (c. 40), s. 182(4), Sch. 22 para. 12(4); S.I. 1991/878, art. 2, Sch. .