England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
IN BANKRUPTCY
(Mr Justice Ferris)

		The Royal Courts of Justice The Strand London WC2A
		Thursday 2 August 2001

Thursday 2 August 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by the applicant, Mr Hurst, in person. The decision that he wishes to appeal is that of Ferris J. Ferris J made an order on 30 July dismissing Mr Hurst's appeal against the order of Mr Registrar James. Mr Registrar James made an order on 11 July 2001 dismissing Mr Hurst's application under section 375(1) of the Insolvency Act 1986. That section confers the following powers on the court:

"Every court having jurisdiction for the purposes of the Parts in this Group may review, rescind or vary any order made by it in the exercise of that jurisdiction".

2. The order which Mr Hurst unsuccessfully asked Mr Registrar James to review was an order made on 12 April 2001 on Mr Hurst's application for an interim order under section 252 of the Insolvency Act 1986. He had made that application by notice of application dated 15 March 2001. Mr Hurst applied for an adjournment, which was refused, and the registrar proceeded to dismiss the application. Mr Hurst says that in those circumstances there was no barrier to him making his application for a review under section 375(1). The barrier, as Ferris J saw it, was the provision in section 255(1)(c) of the Insolvency Act 1986 which provides that:

"The court shall not make an interim order on an application under section 253 unless it is satisfied;

. . .

(c) that no previous application has been made by the debtor for an interim order in the period of 12 months ending with that day".

3. The point which has arisen in the course of Mr Hurst's submissions this afternoon is this. He says that the interrelationship between section 252, 253, 255(1)(c) and 375 raises an important point of principle or practice within the meaning of part 52.13(2)(a) of the Civil Procedure Rules. Reliance is placed on that because this is a the second appeal (the first one having been to Ferris J) and there are higher threshold requirements for obtaining permission to appeal. Mr Hurst points out that on this question of practice in insolvency there was in fact a disagreement between Mr Registrar James and Ferris J, even though they both came to the same conclusion on the outcome of what may be called the merits. Mr Registrar James, in a very full judgment, took the view that he had jurisdiction to entertain Mr Hurst's application under section 375(1). Ferris J formed a different view. So Mr Hurst says that there are two experienced judges in the insolvency field who have reached different views on this matter, and that this should be ventilated before a full court before a decision is made.
4. It would be premature to express any view about this point of insolvency practice. I have only heard submissions from Mr Hurst. It is, I think, important, if this threshold test may be satisfied, for the matter to be argued out with both parties present. I should also add that Mr Hurst submits that, quite apart from this, he is able to satisfy the second threshold test in 52.13(2)(b) that there is "some other compelling reason" for the Court of Appeal to hear the appeal. I will not go into the detail of that at this stage. I merely record it to make it clear that the matter is put under both (a) and (b) of 52.13(2).
5. The course which I have decided would be appropriate in this case would be not to grant or refuse permission, but to adjourn the application for permission to be heard on notice to the respondents. They are the petitioning creditors who have obtained a bankruptcy order against Mr Hurst. I make a direction that, if permission to appeal is granted, the appeal will immediately follow on the grant of permission so that the whole thing can be argued out on the same occasion before the same court.
6. A representative of the Official Receiver, Mr Yeatman, was present when Mr Hurst made his application. He pointed out to the court that the bankruptcy order had been made some four months ago, though he fairly added that further delay in this case would not as, he put it, unduly upset matters. He was, however, concerned that, if I granted a stay on advertisement between now and the hearing, he would want included in the order a liberty to apply to lift the stay if there were, for example, a change of circumstances.
7. I therefore direct, first, that this matter be adjourned; second, that there be a hearing on notice to the respondents; third, that at that hearing the appeal is to follow immediately if permission is granted; and, fourth, pending that hearing I grant a stay of advertisement of the bankruptcy order.
8. I would say, finally, that enquiries will be made to see whether it is possible for this matter to be heard next week. Mr Hurst says that he is available at the court's convenience for a hearing next week, but I do not know what the position of the respondents is. They will no doubt wish to be represented as they were before Ferris J, and I am not able to say whether the list which has been arranged for next week allows for a hearing which I would estimate would take in the region of three hours.
9. So the matter is adjourned on the basis that a fresh date will be fixed for a hearing on notice of the application, and of the appeal, if permission is granted. There will be a stay of advertisement and liberty to apply to the Official Receiver to lift the stay.
ORDER: Application adjourned to a hearing on notice on a date to be fixed. Appeal to follow if permission granted. Stay of advertisement, with liberty to the Official Receiver to apply to lift the stay. Copies of the judgment of Ferris J of 30 July 2001 and this judgment to be provided to the parties at public expense, with expedition. (Order not part of approved judgment)