England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN BANKRUPTCY
(MR NIGEL DAVIS QC)

		Royal Courts of Justice The Strand London Thursday 8 February 2001

Thursday 8 January 2001

1. LORD JUSTICE PETER GIBSON: Barry O'Brien, against whom a bankruptcy order was made on 28 May 1998, seeks permission to appeal from the order made on 17 November 2000 by Mr Nigel Davis QC sitting as a Deputy Judge of the High Court in the Chancery Division. The judge dismissed Mr O'Brien's appeal from an order made by Mr Registrar Baister on 15 August 2000. The registrar dismissed an application made by Mr O'Brien by which he sought against Colin Haig, his trustee in bankruptcy, a declaration that certain assets of his were exempt property within the meaning of section 283(2) of the Insolvency Act 1986.
2. Mr O'Brien considers that he does not need permission to appeal, but I am afraid that it is clear that he does. His case does not fall within any of the exceptions set out in the Civil Procedure Rules, Part 52.3(1). Moreover, as an appeal to this court would be a second appeal if permission to appeal were given, not only must Mr O'Brien satisfy me that his appeal has a real prospect of success or that for some other compelling reason the appeal should be heard, but he must also show that his appeal raises an important point of principle or practice, or again that there is some other compelling reason for the appeal to be heard: see section 55(1) of the Access to Justice Act 1999.
3. Mr O'Brien carries on business on his own account as an outdoor advertising contractor. He mounts advertising displays by posting bills on wooden hoardings. These are then affixed to battens attached to a wall by rawlplugs. Mr O'Brien also has another kind of display sign, a trionic sign, which involves a moving display of advertisements. Mr O'Brien's source of income is the fees paid by advertisers. Mr O'Brien obtains licences and tenancy agreements in order to use the walls to which the hoardings and the trionic sign are attached. Both the registrar and the judge held that the hoardings and the trionic sign, whether taken with or without the licences and tenancy agreements, did not come within section 282(2)(a). That exempts from a bankrupt's estate, which vests in the trustee in bankruptcy automatically on the bankruptcy order "such tools, books, vehicles and other items of equipment as are necessary to the bankrupt for use personally by him in his employment, business or vocation".Mr O'Brien contends that the registrar and the judge erred in law in their conclusion. He criticises their decision as amounting to the example given by Lord Atkin in Liversidge v Anderson [1942] AC 206 at page 245 of Humpty Dumpty's use of words. He submits that it is plain that on the ordinary dictionary meaning of the words in the subsection, his assets did come within the exemption from the bankrupt's estate.
4. For my part I am unable to see why this contention raises an important point of principle, still less of practice. As the judge said, it is a matter of fact and degree whether an asset comes within the exemption. In my judgment, it is not a case where it can be said that the registrar and the judge were obviously wrong.
5. Mr O'Brien has also complained that the procedure adopted at the hearing was unfair. He said that he was only given the skeleton argument of counsel appearing for the trustee eight minutes before the hearing, and that he had no opportunity to address the judge on the matter. The skeleton argument was only just over five pages long. Much of it was taken up with stating the facts and the relevant provisions of the Insolvency Act, and counsel adopted the reasoning of the registrar. It was for Mr O'Brien to show the judge why the registrar's decision was wrong.
6. It is apparent from the judgment and its copious references to what Mr O'Brien said that Mr O'Brien addressed the judge on all the points. For my part I see no real prospect of success on this complaint were permission to appeal to be granted.
7. A further point which Mr O'Brien takes is that the judge did not have jurisdiction to hear the appeal as a Queen's Counsel cannot be a higher court than a registrar. That, too, is wholly misconceived. Section 9(4) of the Supreme Court Act 1981 allows the Lord Chancellor to appoint a person qualified for appointment as a puisne judge of the High Court to be a Deputy Judge of the High Court and during the period or on the occasion for which a person is appointed as such a Deputy Judge he may act as a puisne judge of the High Court. By subsection (5) a Deputy Judge is to be treated for all purposes as, and may perform the functions of, a High Court Judge. Mr Davis, who according to the Bar Directory was called to the Bar in 1975, was qualified for appointment as a puisne judge. He was therefore, as a Deputy Judge of the High Court, properly able to hear the appeal from the decision of the registrar.
8. Accordingly, there is, in my judgment, no important point of principle or practice that has been raised. There is no other compelling reason why the appeal should be heard. The appeal would, I am afraid, have no real prospect of success. Despite the engaging way in which Mr O'Brien has conducted his application before me today, I have reached the clear conclusion that I must dismiss this application.
ORDER: Application refused. (Order does not form part of approved Judgment)