DEBTS NOT RELEASED ON DISCHARGE (BANKRUPTCY ONLY)
The bankrupt’s liability to repay bankruptcy debts (except out of assets of the bankruptcy) is released on his/her discharge from bankruptcy [note 1].
Certain categories of debts are however not released on discharge (see paragraph 40.177). In effect, this means that the bankrupt becomes liable, once again, for the debt on his/her discharge from bankruptcy.
The following categories of debts are not released on discharge:
A debt incurred by fraud is not released on discharge [note 4].
It has been held that fraud in the context of these provisions has simply to be proved in the common law sense, and is intended to refer to debts tainted by actual dishonesty [note 5], or where the act (breach of trust, for example) was both deliberate and involving dishonesty [note 6].
A fraud would not be present simply on the basis of a foreign judgment on an action for fraud [note 7] nor would an obligation to repay money obtained under undue influence automatically be fraud for these purposes [note 8].
The most common fraudulently incurred debt encountered by the official receiver is likely to be a payment of social security benefits where the benefits were obtained fraudulently.
A liability in relation to a fine is not released on discharge. For the purposes of these provisions, ‘fine’ has the same meaning as in relation to a fine as a non-provable debt (see paragraph 40.84) [note 9].
A liability under a recognisance (which is a security entered into before a court with a condition to perform some act required by law) is similarly not released on discharge [note 10].
A penalty imposed for an offence relating to public finance is not released without the consent of the Treasury [note 11].
Such liabilities are also not provable debts (see paragraph 40.90).
The liability of a bankrupt to pay damages to a third party in respect of a personal injury claim is a provable debt in the bankruptcy but the bankrupt is not released from the debt on discharge unless the court so directs [note 18].
A liability in relation to an order arising under family proceedings is not released on discharge unless the court so directs [note 19].
For the purposes of these provisions, ‘family proceedings’ can be taken as having the same meaning as in relation to a such liabilities as a non-provable debt (see paragraph 40.85) and also include maintenance proceedings under the child support legislation [note 20].
An obligation in respect of a budgeting loan or a crisis loan from the Social Fund (see paragraph 40.91) where the bankruptcy petition was presented on or after 19 March 2012 will not be released on discharge [note 21] [note 22] [note 23].
A debt in respect of a student loan (see paragraph 40.92) is not released on discharge where the bankruptcy order was made on or after 1 September 2004. This is provided for in legislation [note 24] other than the insolvency legislation.