- The dividing line between mere non-attendance and incapacity (Kumar v Hellard)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Restructuring & Insolvency analysis: This successful appeal illustrates the duty on parties who become aware that another party lacks capacity within the meaning of the Mental Capacity Act 2005 (MCA 2005). The court held that the issue of incapacity had not been addressed at a hearing of a bankruptcy petition. The resulting bankruptcy order was therefore made pursuant to a serious procedural error and was set aside. The case stands as a reminder to petitioning creditors to: (i) review evidence that suggests a lack of capacity, (ii) if the issue is raised, to seek a resolution of that issue (perhaps by way of appointment of a litigation friend), and in any event (iii) ensure that the court properly addresses the issue of incapacity, particularly if the debtor is unrepresented. Written by Samuel Parsons, barrister, at Guildhall Chambers, Bristol.
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