Geoffrey William Guy & Ors v Nihal Mohammed Brake & Ors (moratorium cancellation costs)
[2023] EWHC 3179 (Ch)
Dr Geoffrey William Guy & Ors v Nihal Mohammed Brake & Ors (Moratorium cancellation directions)
23 June 2023
[2023] EWHC 1560 (Ch)
High Court
Someone got a debt break because of mental health issues. Creditors challenged this, wanting proof of the seriousness of the mental health issues and the type of treatment received. The judge ordered a medical examination and documents to help decide if the debt break was justified, scheduling a hearing to review the evidence.
Key Facts
- •Applicants sought cancellation of the First Respondent's mental health crisis moratorium (MHCM) under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020.
- •The application was based on 'prejudice grounds' and 'eligibility grounds'.
- •The First Respondent was in MHCM due to an assessment by the Third Respondent.
- •The debt advisor (Second Respondent) reviewed the moratorium and did not cancel it.
- •Applicants claim debts exceeding £2.3 million from the First Respondent.
- •The application involved four distinct sets of proceedings.
Legal Principles
Conditions for a mental health crisis moratorium.
Debt Respite Scheme Regulations 2020, Part 3, Regulations 28-30, 34.
Creditor's right to request review and court application to cancel moratorium.
Debt Respite Scheme Regulations 2020, Part 1, Regulations 17, 18, 19.
Jurisdiction of High Court to hear applications to cancel moratorium.
[2021] EWHC 2308 (Ch), Kaye v Lees [2023] EWHC 152 (KB).
Court's inherent jurisdiction to order disclosure.
CPR Part 31, Tombstone Ltd v Raja [2008] EWCA Civ 1444, Patisserie Holdings UK PLC v Grant Thornton UK LLP [2022] Bus LR 1.
Protection of confidential information, including medical information.
CPR 31.22, Campbell v MGN Ltd [2004] 2 AC 457, W, X, Y, Z v Secretary of State for Health [2016] 1 WLR 698.
Article 8 ECHR (right to respect for private and family life).
Article 8 ECHR, Human Rights Act 1998, Z v Finland (1997) 25 EHRR 371, MS v Sweden (1999) 28 EHRR 313, Cantabrica Coach Holdings Ltd v Vehicle Inspectorate [2000] EWHC 315 (Admin), A health authority v X [2002] 2 All ER 780, Re General Dental Council [2011] EWHC 3011 (Admin), Edwards-Moss v HMRC [2016] UKFTT 147 (TC).
Court's power to order medical examination.
Lacey v Harrison [1993] PIQR 10, Re Birtles deceased [2019] Ch 85, CPR Part 35.
Restriction of expert evidence.
CPR 35.1, British Airways plc v Spencer [2015] EWHC 2477 (Ch).
Outcomes
Ordered disclosure of documents from Second and Third Respondents relating to the First Respondent's mental health and treatment.
Necessary to determine whether there was a 'material irregularity' in relation to the First Respondent's eligibility for the MHCM.
Ordered the First Respondent to undergo a medical examination by an expert appointed by the Applicants.
Necessary to assist the court in determining the eligibility criteria for the MHCM; refusal may lead to adverse inferences.
Refused to order disclosure of nephrology evidence.
The First Respondent's renal failure is not directly relevant to the issues in dispute; a psychiatrist's evidence is sufficient.
Set a timetable for filing evidence and expert reports, with a hearing set for September 2023.
To ensure a just and efficient resolution of the application; taking into consideration the First Respondent's health.
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