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.