Barca v Mears [2004] EWHC 2170

• Barca (B) was declared bankrupt and Mears (M) was appointed his trustee in bankruptcy.

• The trustee in bankruptcy applied to the court for a declaration that he had an absolute beneficial interest in B's property and sought an order for possession and sale.

• The main issue that arose in the case concerned whether the court should make an order under section 335A Insolvency Act 1986. 

• B claimed that the special needs of his son would mean mental disturbance to his son if they were forced to move house and this constituted exceptional circumstances.

• Following the decision in Re Citro, Deputy Judge Strauss said there was no exceptional circumstances to overcome the presumption in favour of the creditors.

• On the question of whether s.335A IA 1986 was incompatible with art. 8 ECHR, he said that a narrow definition of exceptional circumstances would be.

• Therefore to make the section convention-compatible (that prioritises the rights of the creditor above all else) it should be taken as meaning: in the general run of cases the creditor's interests will outweigh all other interests”, but that “on a proper consideration of the facts of a particular case”, it is possible to regard the severe harm likely to be caused to Convention protected rights as justifying a conclusion that “exceptional circumstances” can exist. 

RELATED CASES

• Re Citro