Bankrupt's application for injunction - bankruptcy initiated by public authority - no retrospective application of Human Rights Act

In re William Andrew Malcolm: Malcolm v Benedict Mackenzie and Ors: ChD (Mr Justice Timothy Lloyd): 26 February 2004

The former bankrupt made an application within the bankruptcy proceedings, which had been initiated by the Inland Revenue, a public authority within the meaning of the Human Rights Act 1998, for an injunction to prevent his trustee in bankruptcy, also a public authority, obtaining the benefit of the retirement annuity fund, which he had taken out as a self-employed individual prior to his bankruptcy.

The former bankrupt's estate, including his pension benefits, vested in his trustee in bankruptcy on his appointment in 1998.

In 1999, the former bankrupt was discharged from bankruptcy although his debts had not all been paid.

The trustee in bankruptcy therefore sought to obtain the benefit of the retirement annuity fund after it became possible to draw it down in 2000.

The former bankrupt claimed that the transfer of his pension would result in discrimination against him in the enjoyment of his possessions contrary to article 14 and article 1 of the first protocol of the European Convention on Human Rights since he was put at a disadvantage compared to an employed person with the benefit of an occupational pension scheme with a forfeiture clause, whose pension would not vest in the trustee in bankruptcy but would be held on discretionary trusts by the trustee of the pension fund.

The secretary of state for Trade and Industry and the secretary of state for Work and Pensions intervened.

Mark Cooper (instructed by James B Bennett & Co, Crawley) for the applicant; Sarah Moore (instructed by the Treasury Solicitor) for the secretaries of state; Nicholas Lavender (instructed by the Treasury Solicitor) as advocate to the court.

Held, dismissing the application, that the alleged infringement of the former bankrupt's rights had taken place before the coming into force of the Human Rights Act 1998, and he could therefore only rely on that Act if the retrospective provision of section 22(4) applied; that under section 22(4) an individual could assert a right under the Act under section 7(1)(b) against a public authority in legal proceedings, where the infringement took place before the coming into force of the Act only where the proceedings were brought by or at the instigation of the public authority; that while proceedings on a bankruptcy petition were within section 7(1)(b) if the petitioning creditor was a public authority, after a bankruptcy order had been made the continuing proceedings were no longer brought by the public authority and the application of section 7(1)(b) required attention to the particular application within the bankruptcy proceedings; that if the applicant was the bankrupt, then the relevant proceedings were not within section 7(1)(b), and so section 22(4) did not apply unless they were brought at the instigation of a public authority; and that since the application before the court was not brought by or at the instigation of the trustee in bankruptcy the retrospective provisions of the Act did not apply.