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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Khilji v Mehers & Anor [2025] EWHC 548 (Ch) (11 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/548.html Cite as: [2025] EWHC 548 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS
ON APPEAL FROM THE ORDER OF DEPUTY ICC JUDGE CURL KC DATED 2 MARCH 2023

		Rolls Building Fetter Lane, London, EC4A 1NL
		11 March 2025

This judgment was handed down remotely at 10.30am on 11 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
 


Mr Justice Richards :

1. This is my judgment on an appeal against an order (the Order) of Deputy ICC Judge Curl KC (the Judge). The appeal concerns what is commonly referred to as the "use it or lose it" provisions of s283A of the Insolvency Act 1986 (the Act). Those provisions, when operative, give a trustee in bankruptcy three years to decide what to do about an interest held by a bankrupt in a property which is the bankrupt's home (or the home of other specified individuals). The issue in this appeal is whether the relevant three-year period was exceeded. That raises questions both as to the proper construction of s283A and its application to the facts of this case.

Factual background

2. The Appellant was the spouse of Abdur Rasheed Taj Khilji (the Deceased) who died intestate on 23 August 2014. A bankruptcy order was made against the Appellant on 2 July 2018. The First Respondent (the Trustee) is the Appellant's trustee in bankruptcy. The Second Respondent (the Administrator) is the administrator of the Deceased's estate.
3. Before he passed away, the Appellant and the Deceased occupied a property in London (the Property) as their matrimonial home for over 20 years. The Property was registered in the sole name of the Deceased at HM Land Registry. The Trustee and the Administrator consider that, during the lifetime of the Deceased, the Appellant acquired a beneficial interest of 5% in the Property as a consequence of a common intention constructive trust. The Appellant agrees that she had an interest under a common intention constructive trust, but considers that it was of much more than 5% of the Property.
4. The Deceased was survived by the Appellant, as his widow, two adult children from a previous marriage, and either one or two children from his marriage to the Appellant, the uncertainty in this regard arising because the parentage of one of these children is in dispute.
5. The Administrator was appointed as personal representative of the Deceased's estate on 15 October 2016. Letters of administration were granted to the Administrator on 3 April 2017 with the result that the assets of the Deceased's estate vested in the Administrator at that point. The Administrator's position, which no party challenges, is that, until the Appellant's bankruptcy, he held the assets of the Deceased's estate on statutory trusts that arise consequent on the Deceased's intestacy namely: (i) a statutory legacy of £250,000 for the Appellant, (ii) a one half interest in the remaining assets of the estate for the Appellant absolutely and (iii) the remaining one half interest in the estate for the Deceased's children (whether three or four in number) in equal shares.
6. For probate purposes, the Property was the only significant asset of the Deceased's estate with its value at the date of the Deceased's death being declared to be £650,000.
7. After the Appellant was made bankrupt on 2 July 2018, the Trustee was appointed as her trustee in bankruptcy. On the Trustee's appointment, the assets of the bankruptcy estate vested in her automatically pursuant to s306 of the Act. The parties agree that any interest that the Appellant had in the Property under a common intention constructive trust vested in the Trustee at this point.
8. In August and September 2018, there was some correspondence between the solicitors for the Administrator and the solicitors for the Trustee that included a response to the Trustee's question as to whether the Appellant was making any claim against the Deceased's estate. Moreover, between September 2018 and January 2019, the Appellant completed questionnaires and answered questions under oath from the Official Receiver and the Trustee as to the nature and extent of any property interests that she held. I refer to this material compendiously as the Early Bankruptcy Documents and will consider it, and the Judge's conclusions on it, later. For the time being I simply record the different positions of the parties. The Appellant asserts that the Early Bankruptcy Documentation made clear that she was asserting an interest in the Property under a common intention constructive trust. The Administrator and Trustee submit that the overall conclusion was the opposite and that the Deceased was positively denying having any such interest.
9. In April 2019, the Administrator issued a claim form in Willesden County Court seeking possession of the Property naming the Appellant as Defendant (the Administrator's Possession Claim). Those proceedings were issued by the Administrator, as distinct from the Trustee, but the Trustee supported the claim.
10. In September 2019, the Appellant filed a Defence and Counterclaim (the D&CC) in the Administrator's Possession Claim. In the D&CC, the Appellant asserted that she had contributed to the purchase price of the Property and had spent substantial sums of her own money in making improvements to the Property. She sought a declaration that she held a beneficial interest in the Property by operation of a common intention constructive trust that came into existence during the Deceased's lifetime. The Administrator and the Trustee assert (and the Appellant disputes) that this was the first time that the Appellant had articulated any coherent basis on which she could be said to have a beneficial interest in the Property.
11. I observe in passing that the Trustee considers that the right to bring this counterclaim was an asset of the Appellant's bankruptcy estate and so the Appellant was not entitled to pursue it. The Appellant sought the Court's permission under s303 of the Act to bring the counterclaim in her own name. That issue has now been swept up in the ongoing case management of the Administrator's Possession Claim and the Trustee's Possession Claim (described below) and no party suggests that it need concern me.
12. On 10 December 2021, the Appellant requested permission to amend the D&CC so as positively to assert that, by operation of s283A of the Act, such interest as she held in the Property had, by operation of law, ceased to be an asset of the bankruptcy estate and had revested in her.
13. That prompted the Trustee to issue her own claim for, among other relief, possession and sale of the Property (the Trustee's Possession Claim) on 11 January 2022. Various case management steps were taken to ensure that the "bankruptcy specific" elements of the Trustee's Possession Claim could be heard by a specialist ICC Judge. Very broadly, Deputy District Judge Lightman made an order on 27 May 2022 to the effect that the Appellant should give vacant possession of the Property but the execution of that order was stayed pending the outcome of proceedings in the Insolvency and Companies Court to determine whether any interest that the Appellant held in the Property had indeed "revested" pursuant to s283A.
14. Those proceedings came before the Judge on 8 December 2022. In his reserved judgment handed down on 17 February 2023 (the Judgment) the Judge concluded that any beneficial interest of the Appellant in the Property had not revested pursuant to s283A. That conclusion was perfected in the Order against which the Appellant appeals with permission granted by Roth J.

Section 283A

15. Section 283A of the Act provides, so far as material, as follows:

283ABankrupt's home ceasing to form part of estate

(1) This section applies where property comprised in the bankrupt's estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of—

(a) the bankrupt,

(b) the bankrupt's spouse or civil partner, or

(c) a former spouse or former civil partner of the bankrupt.

(2) At the end of the period of three years beginning with the date of the bankruptcy the interest mentioned in subsection (1) shall—

(a) cease to be comprised in the bankrupt's estate, and

(b) vest in the bankrupt (without conveyance, assignment or transfer).

(3) Subsection (2) shall not apply if during the period mentioned in that subsection—

(a) the trustee realises the interest mentioned in subsection (1),

(b) the trustee applies for an order for sale in respect of the dwelling-house,

(c) the trustee applies for an order for possession of the dwelling-house,

(d) the trustee applies for an order under section 313 in Chapter IV in respect of that interest, or

(e) the trustee and the bankrupt agree that the bankrupt shall incur a specified liability to his estate (with or without the addition of interest from the date of the agreement) in consideration of which the interest mentioned in subsection (1) shall cease to form part of the estate.

(4) Where an application of a kind described in subsection (3)(b) to (d) is made during the period mentioned in subsection (2) and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application—

(a) cease to be comprised in the bankrupt's estate, and

(b) vest in the bankrupt (without conveyance, assignment or transfer).

(5) If the bankrupt does not inform the trustee or the official receiver of his interest in a property before the end of the period of three months beginning with the date of the bankruptcy, the period of three years mentioned in subsection (2)—

(a) shall not begin with the date of the bankruptcy, but

(b) shall begin with the date on which the trustee or official receiver becomes aware of the bankrupt's interest.

(6) The court may substitute for the period of three years mentioned in subsection (2) a longer period—

(a) in prescribed circumstances, and

(b) in such other circumstances as the court thinks appropriate.

16. The following matters relevant to the application of s283A are common ground between the parties:

i) The preconditions set out in s283A(1) are satisfied so that s283A is applicable in this case.

ii) Section 283A specifies a three-year period at the end of which the Property will revest in the Appellant, unless the "clock is stopped" before the end of that period.

iii) Section 283A(3) specifies actions that stop the clock. The Trustee's Possession Claim, made on 11 January 2022, fell within s283A(3) and was the only action capable of stopping the clock.

iv) If the Appellant "informed" the Trustee or Official Receiver of her interest in the Property by 2 October 2018 (three months after the date of her bankruptcy), by s283A(2) the relevant period expired on 2 July 2021, three years after the date of the Appellant's bankruptcy. If that is the position, the Appellant's appeal must succeed because no steps falling within s283A(3) were taken until 11 January 2022 which was too late to stop the clock.

v) If the Appellant did not "inform" the Trustee or Official Receiver of her interest in the Property by 2 October 2018, by s283A(5), the relevant period expires three years after the Trustee "became aware" of the Appellant's interest in the Property. If the Trustee "became aware" on or after 11 January 2019, the Appellant's appeal must fail because the three-year period was current when the Trustee's Possession Claim was made and making that claim stopped the clock. By contrast, if the Trustee "became aware" of the Appellant's interest in the Property before 11 January 2019, the Appellant's appeal will succeed because the Trustee's Possession Claim would have been too late to stop the s283A clock from running.

The Judge's conclusions

17. References in the remainder of this judgment to numbers in square brackets are paragraphs of the Judgment unless I specify otherwise.

The proper interpretation of s283A of the Act

18. The Judge's ultimate task was to decide whether, or when, (i) the Appellant had "informed" the Trustee of her interest in the Property or (ii) the Trustee had "become aware" of that interest. In order to reach a conclusion on those issues, the Judge had to decide what those concepts meant as a matter of construction of s283A of the Act.
19. The Judge concluded at [48] by reference to the judgment of Lloyd LJ in Stonham v Ramrattan [2011] 1 WLR 1617 that there was no difference between the quality of the information that the Trustee had to receive in order to be "informed" of the interest for the purposes of s283A(5) or to "become aware" of that interest for the purposes of s283A(5)(b). That said, he acknowledged that the concept of "informing" is applied to information provided by the Appellant only, whereas the Trustee could "become aware" of matters and information derived from sources other than the Appellant. Although in his oral submissions on behalf of the Appellant, Mr Mussa emphasised that the Trustee could "become aware" of information provided otherwise than by the Appellant, I did not understand him to disagree with this aspect of the Judge's conclusions. For their part, the Respondents positively supported it.
20. The parties had polarised positions on the quality of the information that the Trustee needed to have in order to be "informed" or to "become aware" of the interest:

i) The Trustee's position, initially at least, drew on the judgment of Henderson J (as he then was) in The Right Honourable Rhodri Viscount St Davids v Lewis [2015] EWHC 2826 (Ch) ("St Davids v Lewis"). She argued (see [41]) that to be "informed" or to "become aware" of the interest, the Trustee needed to have actual knowledge, herself or imputed from an agent, of the fact that the Appellant had an actual interest in the Property. Knowledge that the Appellant was asserting such an interest or claiming such an interest would not be enough.

ii) By contrast, the Appellant argued that if the Trustee was "on notice" that the Appellant had a possible claim to an interest in the Property, that was sufficient.

21. The Judge rejected both parties' positions as being too extreme. At [44], he rejected the Appellant's approach as being incompatible with the statutory language. He concluded that s283A(5) is concerned with "knowledge" and not with "notice".
22. At [45] to [46], the Judge concluded that the judgment in St Davids v Lewis was concerned with a different statutory provision, namely s309 of the Insolvency Act that deals with property that a bankrupt acquires after the date bankruptcy. He also concluded that the Trustee's position did not capture the nuance of Henderson J's reasoning in St Davids v Lewis.
23. Ultimately, the Judge concluded that there was no single guide to the sufficiency of information necessary that could be applied in all cases. A fact-sensitive enquiry was needed. Where the interest was said to arise by way of a common intention constructive trust, the sufficiency or otherwise of the information held by, or given to, a trustee in bankruptcy had to be judged having due regard to the way interests in a common intention constructive trust arise in practice. Such interests are often undocumented and so are likely to come to the attention of a trustee in bankruptcy as a consequence of assertions rather than clear statements on the face of a document or public register. At [47] the Judge recorded the Trustee's ultimate acceptance that "a clear assertion by a bankrupt to their trustee of an undocumented beneficial interest in the property would be sufficient to "inform" their trustee of an "interest" for the purposes of s283A(5)".
24. The Appellant argues that, in this passage, the Judge accepted that if the Trustee knew that the Appellant was "asserting an interest", she would have sufficient quality of knowledge either to be "informed" or to "become aware" of that interest. I am not sure about that. At [47], the Judge was recording a submission, rather than reaching a conclusion. However, I agree with the Appellant that the Judge recorded that submission without doubting it and he described it as "more realistic" than the Trustee's initial position summarised in paragraph  REF _Ref191752813 \r \h .
25. At [48], the Judge concluded that, if a bankrupt does not tell their trustee in clear terms that they consider themselves to have an interest in a property, a court is likely to be slow to find that the trustee has nonetheless been informed or has become aware of such an interest by means of a process of inference from equivocal facts. He considered that proposition to be supported by statements of Lloyd LJ in Stonham v Ramrattan.

The Judge's application of that test

26. The Appellant had multiple interests, or potential interests in the Property. She had rights as a beneficiary of the statutory trusts arising as a consequence of the Deceased's intestacy. She also had registered matrimonial home rights under the Family Law Act 1996 (the FLA). At [50] to [54], the Judge concluded that these were not proprietary interests in the Property that were relevant for the purposes of s283A. It follows that the only interest in the Property with which the Judge was concerned was that arising under the asserted common intention constructive trust ([55]). There is no appeal against that conclusion and therefore, I too am concerned only with any interest of the Appellant under a common intention constructive trust.
27. The Judge had witness statements from both the Appellant and the Trustee. It is not clear from the face of the Judgment whether the Appellant was cross-examined, though nothing turns on that. The Appellant apparently considered calling the Trustee for cross-examination but ultimately decided not to ([14]).
28. At [27] to [30], the Judge referred to some of the Early Bankruptcy Documents, quoting extracts from them. He noted that, in a statement to the Official Receiver on 28 September 2018 (the OR Statement), the Appellant mentioned having contributed to the mortgage on the Property after the Deceased died. In the same statement, the Appellant said that she did not think she was ever "joint owner of this property".
29. At [29] the Judge referred to correspondence between solicitors for the Administrator and the Trustee's solicitors during the course of which the Trustee's solicitors were provided with an office copy of the title to the Property registered at HM Land Registry (the Office Copy Entry). The Judge noted the submission of then counsel for the Appellant (Mr Wareing) that, because the Office Copy Entry showed that the Appellant had rights of occupation pursuant to s31 of the FLA, this should have "triggered a thought" on the part of the Trustee as to the "basis upon which [the Appellant] continue[d] to occupy the Property".
30. The Judge drew conclusions from these matters at [56] to [60]. He rejected the Appellant's "onion layers" argument to the effect that the Appellant's interest in the statutory trusts, or her rights under the FLA should have alerted the Trustee to her interest in the Property under a common intention constructive trust ([56] to [58]).
31. At [59] to [60] the Judge concluded that the reference in the OR Statement to the Appellant paying the mortgage after the Deceased's death was of limited significance. He considered that paying the mortgage was an equivocal act: it could be consistent with the Appellant having an interest under a common intention constructive trust, but was just as consistent with her having no such interest. The Judge also considered at [60] to [62] that the Appellant's statement that she did not think that she had ever been a joint owner of the Property was inconsistent with any assertion of an interest in the Property under a common intention constructive trust.
32. At [63], the Judge considered the implications of the responses that the Appellant gave to a questionnaire given to her by the Trustee and to a questionnaire from the Official Receiver to which she gave responses under oath (the Questionnaire and PIQB respectively). The Judge concluded that these documents could not assist the Appellant for two reasons. First, they were both dated 13 January 2019. That was more than three months after the date of the bankruptcy and so could not assist with the Appellant's argument that she had "informed" the Trustee within three months of the bankruptcy. Moreover, 13 January 2019 was less than three years before the Trustee's Possession Claim was made. Therefore, even if the Trustee or Official Receiver "became aware" on receipt of the Questionnaire and PIQB that the Appellant had an interest in the Property, the Trustee's Possession Claim made on 11 January 2022 would still stop the clock pursuant to s283A(5) and prevent that interest revesting. (The Judge made some typographical slips in [63] concerning the dates of the Questionnaire/PIQB and Trustee's Possession Claim, describing them as being in 2018 and 2021 respectively, but his overall meaning is clear.)
33. In any event, the Judge concluded that the Questionnaire and PIQB communicated no information at all about the existence of an interest in the Property.
34. The Judge did not refer in his analysis of the Early Bankruptcy Documents to the Office Copy Entry. I consider that is because the Appellant's then counsel was relying on the Office Copy Entry only as disclosing the Appellant's rights under the statutory trusts and under the FLA and, as noted in paragraph  REF _Ref190859958 \r \h , the Judge considered that these asserted "interests" in the Property were not relevant to his analysis. Since the Appellant was not inviting the Judge to attach significance to other aspects of the Office Copy Entry, the Judge did not therefore mention restrictions on the title register of the Property that prevented transfers being registered unless notice was given to the persons with interim charging orders (the Interim Charging Orders) over "the beneficial interest of [the Appellant]". I return to the Interim Charging Orders when considering the grounds of appeal.

The Grounds of Appeal

35. Roth J gave the Appellant permission to appeal on four grounds. Before me, the Appellant's arguments coalesced into two propositions that are put in the alternative:

i) Ground 1 – The Judge erred in law in determining what was necessary for the Appellant to "inform" the Trustee of her interest in the Property and what was sufficient for the Trustee to "become aware" of that interest. Accordingly, the Judge applied the wrong test in law.

ii) Ground 2 – Even if the Judge directed himself correctly on the law, he failed to apply that approach correctly to the facts and omitted to consider key facts that were relevant to the analysis.

36. There is no Respondents' notice in this appeal and, accordingly, neither Respondent seeks to challenge the Judge's formulation of the applicable tests that I have described in paragraphs  REF _Ref190867176 \r \h  to  REF _Ref190867187 \r \h .

Ground 1

37. By Ground 1, the Appellant seeks substantially to revive the argument summarised in paragraph  REF _Ref190867095 \r \h  that the Judge rejected. Crucially, the Appellant argues that, if the Trustee is put on notice of relevant facts from which the Trustee ought to have realised that the Appellant may have a prima facie claim to an interest in the Property, that is sufficient to result (i) in the Trustee being "informed" of the interest and (ii) in the Trustee "becoming aware" of the interest. Of course, result (i) would be significant only if the Appellant provided the information, whereas result (ii) would be significant irrespective of the source of the information.
38. In his written submissions, Mr Mussa on behalf of the Appellant described this as being a species of "constructive knowledge". He argued that the Trustee should be fixed with knowledge of matters that she would have discovered if she had made reasonable enquiries.
39. The first objection to that approach is that it is at odds with the words of s283A(5). The ordinary and natural meaning of the concepts of "being informed of" and "becoming aware" requires a focus on what the Trustee actually knew. That is a focus on the Trustee's subjective knowledge which does not obviously invite consideration of what the Trustee does not know, but could have found out. The concept of a reasonable enquiry does not feature at all in the statutory language and still less does the concept of what a trustee in bankruptcy could have found out on making such enquiries.
40. The Appellant argues that her interpretation of the provision is supported by considerations of policy. The whole purpose of s283A, she submits, is to prevent trustees in bankruptcy from sitting on their hands for more than 3 years before deciding whether to seek possession of a dwelling-house to which the section applies. Moreover, a trustee in bankruptcy has fiduciary obligations to make proper enquiries so as to gather in assets for the benefit of the bankruptcy estate.
41. I do not doubt that s283A is intended to prevent trustees sitting on their hands. However, that does not take the debate much further since it simply raises the secondary question whether a trustee can be said to be "sitting on their hands" if they do not take action in connection with an interest in a dwelling-house of which they are (subjectively) unaware.
42. Moreover, there are other policy indications that are relevant to the proper interpretation of s283A. First, as Henderson J emphasised at [28] to [29] of his judgment in St Davids v Lewis, in the first instance, the bankrupt knows all of the relevant facts and the trustee knows none of them. The Appellant rightly points out that Henderson J made those points when construing a different statutory provision (s309 of the Act rather than s283A). However, although they use different language, both s309 and s283A are concerned with the state of a trustee in bankruptcy's knowledge. Henderson J's point is, therefore, valid when considering s283A. In my judgment, given the imbalance in the state of the parties' knowledge, it is not obvious, particularly given the statutory words used, why Parliament would wish to fix a trustee with deemed knowledge of matters that are largely within the actual knowledge of the bankrupt.
43. Henderson J identified a further policy consideration at [30] of his judgment in St Davids v Lewis which is also applicable to s283A. If s283A(5) operates, existing property rights are disturbed. Assets previously vested in a trustee in bankruptcy that would otherwise have been available to pay creditors revest in the bankrupt and cease to be so available. I consider it unlikely that Parliament would have wished the question whether property rights could be affected in this way to depend on open textured questions of what trustees in bankruptcy might have found out if they had made enquiries. The significant effect on existing property rights is, in my judgment, more consistent with an enquiry of a more "bright line" nature that focuses on what a trustee in bankruptcy actually knows.
44. The Appellant submits that her approach to "constructive knowledge" is supported by jurisprudence on s11(4) and s14(1) of the Limitation Act 1980 (the Limitation Act). Those provisions link the commencement of a limitation period for a personal injury action to the "date of knowledge" of matters such as an injury being attributable to the act or omission said to constitute negligence, nuisance or breach of duty. The Appellant relies on the following extract from [12] of the judgment of Lord Wilson in Ministry of Defence v AB and others [2012] UKSC 9 as demonstrating that a person can have "knowledge" of matters of which they are not actually aware, but could have found out on making further investigations:

The investigation upon which the claimant should reasonably embark is into whether in law he has a valid claim (in particular whether the act or omission of the defendant involves negligence or other breach of duty, being a matter of which the claimant is specifically not required to have had knowledge under section 14(1) ) and, if so, how that claim can be established in court. So it is an investigation likely to be conducted with the assistance of lawyers; but, in the light of their advice, it may well also embrace a search for evidence, including from experts. The focus is upon the moment when it is reasonable for the claimant to embark on such an investigation.

45. In my judgment, the Appellant is reading this passage out of context and thus misunderstanding it. The passage appears in a section of Lord Wilson's judgment dealing with actual knowledge (under s14(1)) and not deemed knowledge under s14(3). Jurisprudence on s14(1) has, over time, established that a "reasonable belief" or a "reasoned belief" on the matters specified in s14(1) could amount to "knowledge" of those matters. That approach led to further questions, namely how firmly the belief needed to be held, and how grounded in evidence it needed to be, before it qualified as knowledge. In the sentence preceding the quotation from his judgment, Lord Wilson explains that, in Broadley v Guy Clapham & Co [1994] 4 All ER 439, Hoffmann LJ as he then was had explained that the "belief" becomes "knowledge" at the point at which the claimant knows enough to make it reasonable for him to begin to investigate whether he has a case against the defendant. That is the "investigation" that Lord Wilson is describing in the extract of his judgment quoted above. Lord Wilson is not making a more general statement that matters that could be discovered following investigation are to be taken as "known" for the purposes of s14(1) of the Limitation Act.
46. The reason for this is clear: s14(3) of the Limitation Act sets out a statutory expression of matters of which a litigant is to be treated as having knowledge. Section 14(1) is concerned only with actual knowledge rather than attributed or deemed knowledge. Indeed, the presence of s14(3) brings out the flaw in the Appellant's analogy with jurisprudence on s14(1) of the Limitation Act. If Parliament had wished to enact an approach to the concepts of a trustee being "informed" or "becoming aware" of matters that carried with them the kind of constructive knowledge for which the Appellant argues, it could have enacted a provision analogous to s14(3). That it did not do so points firmly against the Appellant's interpretation of s283A.
47. The Appellant criticised the Judge's references in his judgment to St Davids v Lewis. She argues that that was a case concerning an "uncooperative" bankrupt whereas she had been entirely co-operative by filling in forms and answering questions from both the Official Receiver and the Trustee. There is no force in that criticism. Whether it concerned an "uncooperative" bankrupt or not, St Davids v Lewis remained an authority dealing with the nature of the "knowledge" a trustee in bankruptcy had to have for the purposes of a different provision of the Act. The Judge did not suggest that St Davids v Lewis provided an answer to the question before him.
48. The Appellant also submits that the Judge's approach to determining whether the Trustee had been "informed of", or had "become aware of" the Appellant's interest in the Property did not give proper weight to the fact that Trustee could be expected to pick up on inferences, given her expertise, that others would not. In a similar vein, the Appellant argues that the Judge's approach effectively held her to too high a standard by requiring her to communicate the nature of her interest in the Property by using legal concepts of which she was unaware and did not understand.
49. In reality, that is not a challenge to the Judge's conclusions on the construction of s283A since the proper interpretation of s283A is a question of law that is not affected by whether or not it would be easy or difficult for the particular Appellant to reach the standard that Parliament has decided to be applicable. Therefore, this is a challenge to the Judge's evaluation of the facts, namely that the Judge should have found that the Trustee had been "informed of" or had "become aware" of the interest, because the information she had been given would have made her realise that the Appellant had an interest under a common intention constructive trust. If the Appellant had wished to challenge the Trustee on the conclusions that she had actually drawn from the information provided, she should have applied to cross-examine the Trustee. In the absence of any such challenge, it is not for an appeal court to speculate on the answers that the Trustee might have given in cross-examination. Moreover, for reasons set out in my discussion of Ground 2 below, there was ample basis for the Judge's conclusion that the Trustee had not been informed of, and had not become aware of, any interest of the Appellant under a common intention constructive trust.
50. I dismiss the appeal on Ground 1. The Appellant has not persuaded me that the Judge should have followed a different approach to the questions whether the Trustee had been "informed" or had "become aware" of the Appellant's interest in the Property.

Ground 2

51. Given my conclusion on Ground 1, the question raised by Ground 2 is whether the Judge was wrong to find, applying the interpretation of s283A that he favoured, that (i) the Appellant had not "informed" the Trustee of her interest by 2 October 2018 and (ii) the Appellant had not "become aware" of that interest by 11 January 2019.
52. The Respondents characterise this as a challenge to the Judge's conclusions of fact. The Appellant does not disagree with this characterisation and, in those circumstances, I apply the familiar guidance given by Lewison LJ at [2] of Volpi v Volpi [2022] EWCA Civ 464:

2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

53. Both Mr Mussa for the Appellant and Mr French for the Trustee helpfully took me through salient parts of the Early Bankruptcy Documents. From those, Mr Mussa submitted that the Trustee had either been told, or discovered, the following "killer facts":

i) The Appellant told the Official Receiver in the OR Statement on 28 September 2018 that she had occupied the Property as a matrimonial home with her husband until he passed away. She continued to pay the mortgage after his death. There was a dispute involving ownership of the Property between his four sons and the Property remained her sole or principal residence.

ii) The Office Copy Entry, which the Administrator's solicitors sent to the Trustee's solicitors on 17 September 2018, recorded that various finance parties had the benefit of the Interim Charging Orders that were expressed to be over the Appellant's beneficial interest in the Property. That provided a strong indication indeed that the Appellant had such a beneficial interest.

iii) The same Office Copy Entry recorded the Appellant's rights over the matrimonial home that arose under the FLA.

54. In my judgment, this presentation of allegedly "killer facts" represents, to adapt Lewison LJ's memorable phrase in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, an attempt to island hop among a sea of evidence. The Appellant selects some of the evidence that was before the Judge, awards that evidence a high status, says little or nothing about evidence pointing in the other direction and invites the court to conclude that, on that basis, the Judge's factual evaluation was wrong. The challenge to the Judge's factual evaluation therefore commences from an unpromising start. An analysis of the averred "killer facts" does not take the challenge much further.
55. First, the "killer facts" on which the Appellant relies were not the only relevant matters. There was also the fact that the Appellant told the Official Receiver that she did not consider that she had any interest in the Property. I accept that the Appellant is not a property lawyer. Her understanding may be wrong. However, as the Judge observed, the very fact that she said she had no interest in the Property pointed against a conclusion that there was a common intention between the Appellant and the Deceased that she should have such an interest.
56. In a similar vein, in the Questionnaire, the Appellant indicated that she neither owned nor rented the Property. She left blank the section of the Questionnaire asking her to specify the "value of any property you own or have an interest in". I am prepared to accept that these answers may be consistent with the Appellant being unaware that she had an interest in the Property. However, the Judge was quite entitled to take it as being consistent with the Appellant positively asserting that she had no such interest.
57. The Judge was also entitled to the view expressed at [59] to the effect that paying the mortgage was an equivocal act. Moreover, the mortgage was an interest-only mortgage as the Trustee confirmed in paragraph 35.4 of her unchallenged witness statement before the Judge. Contributions to the payment of such a mortgage are less likely than contributions to a repayment mortgage to give rise to an inference of the common intention necessary to substantiate a common intention constructive trust.
58. The Judge was entitled to conclude at [57] and [58] that the fact that the Appellant was the widow of the Deceased and the Property a matrimonial home said nothing about the separate question whether the Appellant held an interest in the Property under a common intention constructive trust.
59. Perhaps the high point of the Appellant's argument revolved around the fact that the Office Copy Entry referred to the Interim Charging Orders expressed to be over the Appellant's beneficial interest in the Properties. There is no force in the Appellant's criticism of the Judge for failing to mention this point in his judgment. The Appellant's then counsel was not inviting the Judge to attach any significance to the Interim Charging Orders which were not mentioned in his skeleton argument. Nevertheless, counsel for both the Administrator and the Trustee did mention the Interim Charging Orders in their submissions. I agree with the Respondents that I should proceed on the basis that the Judge had the Interim Charging Orders in mind (see paragraph [2(iii)] of Volpi v Volpi quoted above) but, like then counsel for the Appellant, the Judge considered them to be insufficiently important to mention specifically.
60. The Judge was entitled to conclude that the Office Copy Entry did not show that the Appellant actually had an interest in the Property or even that she was asserting such an interest. The fact that creditors of the Appellant applied for Interim Charging Orders certainly suggests that they thought, at the time of their applications, that the Appellant might have an interest in the Property and, if she did, they wanted to have a measure of security over any such interest. However, there was evidence before the Judge suggesting that the creditors' belief that the Appellant might have an interest could have been mistaken. In 2016 Master Price had refused to make one of the Interim Charging Orders final because he considered there was no sufficient evidence that the Appellant had an interest that could be charged. Deputy Master Bartlett reached a similar conclusion in 2019 in relation to a different Interim Charging Order mentioned in the Office Copy Entry.
61. It is quite clear to me that the Judge's factual conclusions summarised in paragraph  REF _Ref190875150 \r \h  are far from "rationally insupportable". Indeed, I respectfully share them. I dismiss the appeal on Ground 2.
62. Finally, I note that in the skeleton argument served on behalf of the Appellant, Mr Mussa made a number of criticisms of the Judge's factual findings by asserting that the Judge failed to recognise that information provided to the Trustee should have spurred the Trustee into making further enquiries. I do not strictly need to consider these submissions since, in dismissing the appeal on Ground 1, I have rejected the Appellant's argument based on what Mr Mussa termed "constructive knowledge".
63. I therefore make only the following observations on those submissions. Even if, contrary to my conclusion on Ground 1, s283A(5) is concerned with information that the Trustee did not have, but would have obtained if she had made reasonable further enquiries, this appeal would still fail. The evidence I was shown demonstrated that having become aware that the Appellant had occupied the Property as a matrimonial home with her deceased husband, both the Official Receiver and the Trustee did make reasonable further enquiries. They asked the Appellant about her assets. She responded in terms that both the Trustee and Official Receiver could reasonably take as indicating that she had no interest in the Property. I quite accept that the Appellant may have been mistaken and she may have an interest in excess of the 5% interest that the Respondents now accept her to have. However, if the Appellant was mistaken I see no basis for a conclusion that the Trustee and Official Receiver, who had not been privy to any of the discussions between the Appellant and the Deceased touching on ownership of the Property, should somehow have done better and realised prior to 11 January 2019 that the Appellant might, in fact, have an interest.
64. Mr Mussa attached to his skeleton argument a "Disciplinary Consent Order" dated 26 November 2024 confirming that the Trustee had been sanctioned by the Institute of Chartered Accountants of England and Wales (the ICAEW) in connection with her work as liquidator of a company. The ICAEW found that the Trustee had, between 4 November 2020 and 1 November 2022 failed to take reasonable steps to investigate the relevant company's assets or to progress the liquidation in a timely manner. Mr Mussa applied for permission to adduce this new evidence on appeal. Mr French, on behalf of the Trustee, opposed that application.
65. I formally refuse permission to adduce the new evidence. I do not consider it relevant since, having rejected the Appellant's construction of s283A based on "constructive knowledge", I do not consider that an enquiry as to the Trustee's assumed diligence in finding out hitherto unknown facts is unnecessary. I would add only that, even if I had admitted evidence of the ICAEW's sanction it would not have led me to a conclusion different from that set out in paragraph  REF _Ref190881542 \r \h . Even though the ICAEW found that the Trustee fell short of her duty in another case, in this case, she made reasonable enquiries of the Appellant and it was reasonable for her to conclude that they did not suggest that the Appellant had an interest in the Property.

Disposition

66. The appeal is dismissed on all grounds. I hope that the parties will be able to agree on the form of an order giving effect to this judgment and on consequential matters such as costs. If they cannot agree, there will need to be a short further hearing, over Microsoft Teams if that is more convenient for the parties, to deal with these matters. Any such hearing must take place no later than 28 days after the hand down of this judgment.