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 CHANCERY DIVISION
(LEEDS DISTRICT REGISTRY)
(HIS HONOUR JUDGE MCGONIGAL)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 13 December 2001

1. LORD JUSTICE JONATHAN PARKER:This is an application by Mr Henry Pattison, who appears in person, for permission to appeal against an order made by His Honour Judge McGonigal, sitting in the Chancery Division of the High Court at Leeds District Registry, on 18 June 2001. He dismissed Mr Pattison's appeal from a bankruptcy order made against him by District Judge Fairwood on 13 March 2001.
2. The appeal for which permission is sought is, accordingly, a second tier appeal for the purposes of CPR 52.13 of the Civil Procedure Rules which provides:

"(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.

(2) The Court of Appeal will not give permission unless it considers that-

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

3. The bankruptcy petition which led to the order was presented by Mr Pattison's former solicitors, Messrs Clarksons & Steele, and was based on a statutory demand dated 4 August 2000 in the sum of £28,068.22 in respect of Mr Pattison's liability to the petitioners under orders for costs made in successive actions commenced by Mr Pattison against the petitioners. There were two such orders, the first and larger order was made on 20 November 1997; the second order was made on 14 April 2000.
4. These costs orders are ne longer subject to appeal. All avenues of appeal against them, and against the substantive orders to which they were ancillary, have been exhausted. Accordingly, there is no dispute as to Mr Pattison's liability in respect of the costs orders in question, nor that such liability remains outstanding.
5. Mr Pattison's sole ground of appeal against the bankruptcy order is that, following the making of the order, District Judge Fairwood observed that, notwithstanding the bankruptcy, Mr Pattison would be in a position to prosecute his latest claim against the petitioners. District Judge Fairwood later reconsidered that aspect of the matter and, in consequence, Mr Pattison was advised, correctly, that the benefit of any cause of action against the petitioners vested in his trustee in bankruptcy upon the making of the bankruptcy order and that, in consequence, it would be a matter for the trustee whether to prosecute a claim against the petitioners.
6. Dismissing his appeal against the making of the bankruptcy order, Judge McGonigal said at page 1D of the transcript of his judgment:

" The sole ground of appeal is that when the Order was made by the District Judge, Mr Pattison was told by the District Judge that he could pursue this third action against Clarksons & Steele despite a Bankruptcy Order having been made. The Court subsequently wrote to Mr Pattison and relayed to him the views of the District Judge, informing Mr Pattison that District Judge Fairwood had reconsidered the matter and now took the view that the cause of action against Clarksons & Steele vested in Mr Pattison's trustee in bankruptcy so that Mr Pattison cannot pursue that action, having been made bankrupt.

The advice, if one may call it that, as to whether Mr Pattison could pursue the action against Clarksons & Steel was not part of the Order being appealed against. Mr Pattison says that he consented to the Order in the light of that indication from the District Judge, but the Order does not record that it is made by consent, and Miss Sharp, for the petitioning creditor, who was there, says that the views were expressed by the District Judge after the Order for bankruptcy had been made.

On any view, in my judgment, the views expressed by the District Judge are irrelevant. The debt upon which the petition was founded was and is due and owing and there is no basis for the success of the appeal against the District Judge's Order. Mr Pattison's appeal is therefore dismissed."

7. Refusing permission to appeal against his order dismissing Mr Pattison's appeal against the bankruptcy order, Judge McGonigal gave his reasons for refusing such permission in the following terms:

"The sole ground of Mr Pattison's appeal from the Order of DJ Fairwood 14/3/01 making Mr Pattison bankrupt was that the DJ had told him that despite the bankruptcy order he could pursue the third of 3 actions Mr P has brought against his former solicitors but that the DJ had subsequently told him that he could not do so as the right of action vested in his trustee. That was suggested ground of appeal to CA. Dislike of the consequences of bankruptcy is not a good ground of avoiding it. I decided no reasonable prospect."

8. In the course of his helpful oral submissions, Mr Pattison has indicated the arguments which he tells me he would have put to District Judge Fairwood in opposition to the bankruptcy petition had he realised that the effect of the bankruptcy order, if made, would be to transfer the benefit of the claim against Clarksons & Steele to his trustee in bankruptcy.
9. Having listened to Mr Pattison's submissions, however, I cannot discern any basis upon which the bankruptcy petition could have been successfully resisted. I respectfully agree with Judge McGonigal's assessment of the position in that respect. Moreover, far from raising any important point of principle or practice, the proposed appeal seems to me to be misconceived.
10. Accordingly, I can see no basis for granting permission to appeal in this case, and I would refuse the application.
Order: Application refused. Transcript of judgment to be provided at public expense.