England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(IN BANKRUPTCY)
(His Honour Judge Rich QC
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Tuesday 16th October, 2001

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal against an order made on 13 March 2001 by His Honour Judge Rich QC, sitting as a judge of the High Court in bankruptcy. By that order the judge dismissed appeals by the applicant, Mrs Lena Shamash, from orders made by Mr Registrar James on 16 November 2000 and 20 December 2000.
2. The order of 16 November 2000 was a bankruptcy order made on the petition of the Inland Revenue, founded on the debtor's failure to comply with a statutory demand served on her on 19 October 1999 in respect of unpaid tax and interest amounting to £57,255. Mrs Shamash applied thereafter, under section 282(1)(a) of the Insolvency Act 1986, for an order annulling the bankruptcy order. That application was dismissed by the order of 20 December 2000. In the meantime Mrs Shamash had appealed the order of 16 November 2000 by a notice dated 30 November. She sought, also, to appeal the order of 20 December 2000 by a notice dated 7 March 2001. Judge Rich gave permission for that second appeal to be brought out of time and he heard it together with the first appeal.
3. The judge set out the facts in a full judgment, of which a transcript has been included in the papers before me. He explained that the receipt which had been the subject of assessment to tax was a sum of money paid to Mrs Shamash and a company which she controlled, Linross Ltd, under a consent order made as long ago as 7 June 1990. On 9 October 1992 the Commissioners of Inland Revenue assessed the company to corporation tax; and assessed Mrs Shamash personally to income tax. Both she and the company appealed to the General Commissioners. It is unnecessary to refer further to the company's appeal, save to note that it was dismissed.
4. The General Commissioners reduced the amount of the assessment upon Mrs Shamash; but upheld it in the lower sum. Mrs Shamash wished to appeal to the High Court by way of case stated against that decision, as she was entitled to do. After some considerable delay, a case stated was signed by the General Commissioners on 6 August 1997. Mrs Shamash did not agree with all its terms; but it was received by her in its finalised form on 18 August 1997. She was informed by the clerk to the General Commissioners in a letter dated 13 August 1997, under cover of which the case stated was sent to her, that if she wished to proceed with an appeal she must transmit the case to the High Court within 30 days of receipt of that letter. On 27 August 1997 she was reminded of that requirement by the Inspector of Taxes.
5. Despite that advice and the reminder, Mrs Shamash did not transmit the case stated to the High Court until 1 October 1997. That was outside the 30 day period prescribed by regulation 22(4)(a) of the General and Special Commissioners (Amendment of Enactments) Regulations 1994. Her application for an extension of that 30-day period was refused by the High Court on 27 October 1997. A subsequent application for permission to apply for judicial review to quash the Commissioners' determination was prepared, but not pursued.
6. The effect, therefore, was that the determination of the General Commissioners as to Mrs Shamash's liability for tax under the assessment made in 1992 became final and conclusive: see section 46(2) of the Taxes Management Act 1970.
7. It was in those circumstances that the Inland Revenue served the statutory demand for the balance of the tax due and interest. By an application dated 5 November 1999, Mrs Shamash sought an order setting aside the statutory demand. That application was refused by Mr Registrar Simmonds on 8 November 1999. Mrs Shamash applied to have that order (refusing to set aside the statutory demand) varied. She made that application on 3 February 2000. On that day the application to vary was refused, also by Mr Registrar Simmonds. The bankruptcy petition followed some four months later, on 14 June 2000.
8. In his judgment on 13 March 2001 His Honour Judge Rich QC said this, on pages 4 and 5 of the transcript:

"Mr Shamash's concern throughout has been that she maintains that the decision of the General Commissioners was wrong and that she was not liable to pay tax on the sum which she recovered in the proceedings to which I have referred. That is a matter that she has been anxious to canvas not only before me but before Mr Registrar James on each of the occasions when she appeared and he made the orders now the subject of appeal to me.

For the reasons which I have sought to set out it is not within the jurisdiction of this court to consider whether or not she is right to say that the General Commissioners have got it wrong. Their decision is final and conclusive for the reasons which I have set out, and the debt therefore follows, and, if not paid, can properly found the order for bankruptcy which Mr Registrar James made on 16th November 2000."

9. He went on, at pages 6 and 7:

"The result is that the order was made declaring her bankrupt and I can see no basis for saying that it was wrongly made. The application to annul the order was likewise refused, and there was no circumstance that was put before the Registrar as to why the recently made order should be annulled, as was sought, under s.282(1)(a) of the Insolvency Act 1986, namely on the grounds that on any grounds existing at the time of the bankruptcy order the order ought not to have been made. Had she been able at that second hearing seeking an annulment to put forward grounds under para.(b) of s.282(1) it might have been possible to reconsider the question of her making provision for payment out of the value of her interest in her home, but the application for annulment was not made under that paragraph and was rightly not considered by the Registrar, who considered only what had been put forward as existing at the date when the petition was considered and the order was made.

Accordingly, there is no basis, in my judgment, for saying that either of the decisions made by the Registrar was other than within his powers properly on the evidence, or that there was any misdirection as to the exercise of his discretion which enables me to interfere with either of his decisions."

10. It will be apparent from the history of these proceedings, which I have set out, that this would be an appeal to which section 55(1) of the Access to Justice Act 1999 applies. Permission to appeal to this Court, which Mrs Shamash now seeks, cannot be granted unless it is shown that the appeal would raise some important point of principle or practice or that there is some other compelling reason why the appeal should be heard. That statutory test is not satisfied in the present case. Not only is there no important point of principle or practice in the circumstances which I have recounted, there is no point at all. The Registrar was faced with the statutory provisions as to the finality of an assessment to tax. It would have been perverse for him to exercise his discretion in any way other than the way in which he did exercise it. Similarly, there was no basis upon which His Honour Judge Rich QC could interfere.
11. Judge Rich has pointed out to Mrs Shamash the step which she can take if she wishes to escape the consequences of the course which she has pursued so far. That is to make an application under section 282(1)(b) of the Insolvency Act 1986 for an annulment of the bankruptcy order on the grounds that, since the making of the order, the debt has been paid or secured to the satisfaction of the Court. If she can persuade the Court - and it is not this Court - that she is able to pay the debt upon which the bankruptcy petition was founded, or that she is able to secure it to the satisfaction of the Court, then the Court can entertain an application under section 282(1)(b). She has not yet made that application. It has been suggested to her that her own best interests would be served by taking legal advice in this complex field from some competent source. So far that suggestion does not seem to have fallen on fertile ground.
12. But it is not for me to advise her what course to take. My task is to apply the test under section 55(1) of the Access to Justice Act 1999. On the application of that test, this application for permission to appeal must be dismissed.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)