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
(His Honour Judge Rich QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 3rd April 2001

Tuesday, 3rd April 2001

1. LORD JUSTICE ROBERT WALKER: This is an application by Mr Edward Cummings, who has appeared in person, for permission to appeal from an order made on 10th November last by His Honour Judge Rich when he was sitting as an additional judge of the Chancery Division of the High Court in bankruptcy. Judge Rich's order, which was made in the absence of Mr Cummings 15 minutes after the case had been called on, dismissed his appeal from an order of Mr Registrar Rawson made on 27th July 2000, dismissing Mr Cummings' application to annul a bankruptcy order which had been made against him, again in his absence, by Mr Registrar Rawson on 29th June 2000. The bankruptcy order was made on a creditor's petition presented on 22nd March 2000 by Inntrepreneur Pub Company (GL) Ltd (which I will call "the lessor").
2. Mr Cummings' case, as it appears from a witness statement which he made on 12th July 2000, was that he was not aware of the bankruptcy petition, despite the fact that there was evidence of service of the petition. The Registrar was not satisfied with his explanation and saw no reason to annul the order.
3. Mr Cummings' case as to his non-appearance before Judge Rich is that a train was cancelled - an explanation which is only too likely to be true - and that he arrived in court 11 minutes after the judge had dismissed his appeal, that is about 26 minutes after the case was due to be heard. There are conflicting accounts of precisely what happened on that morning of 10th November 2000. However, before going further into those matters, it is appropriate to consider first whether Mr Cummings had any realistic prospect of success in his appeal to Judge Rich.
4. The matter has a long history and goes back to two successive tenancies of a public house called the Kentish Drovers in the Old Kent Road, Peckham. The first tenancy was to Mr Cummings himself. It began in 1993 and it ended with litigation in 1994. The second tenancy, granted apparently after a compromise which subsequently fell apart, was granted on 5th September 1994 to a company called Drovers Ltd (which I will call "Drovers"), owned and controlled by Mr Cummings. That tenancy also ended in litigation, that is proceedings by the lessor against Drovers, for possession of the licensed premises and for arrears of rent. So there were two actions on foot and there was a good deal of litigious activity during 1995.
5. The matter came before this court on 28th April 1995 (when a limited permission to appeal was granted) and again on 13th December 1995 (when the appeal was dismissed). There was further prolonged skirmishing, and Grepe v Loam orders against Mr Cummings and Drovers were made by Gray J on 28th October 1999: see Grepe v Loam (1887) 37 Ch D 168.
6. Most directly in point to this application are the two other orders made by Gray J on 28th April 1995, one in the proceedings (with the designation No. 1995 I 102) by the lessor against Drovers and the other in the proceedings (with the designation No. 1994 I 1098) by the lessor against Mr Cummings himself. In the transcript of the judgment of Gray J which led to those orders he is recorded as having said, when he was asked to make orders for costs on the indemnity basis:

"I am satisfied that this would be a proper case in which to make an order for payment of costs on an indemnity basis. Having said that, it appears to me I do need to consider the bills and, having done so, I have come to the conclusion that something ought to be knocked off each of them. I am approaching this on a rather broad brush basis, as I think it is really inevitable that I do in a case of this kind. What I am going to do is reduce each bill to £2,500, making £5,000 in all."

7. That was at a hearing at which, as well as making the Grepe v Loam orders, Gray J had dismissed two appeals, one by Drovers and the other by Mr Cummings, with Mr Cummings being allowed to represent his company and also appearing as a litigant in person on his own behalf. Each of the two orders as drawn up contained a paragraph in the following form:

"The Defendant [Drovers in one case and Mr Cummings in the other case] do pay [the lessors] the costs of the said appeal and that of the appeal [in the other linked action] assessed on an indemnity basis in the total sum of £2,500."

8. On 13th June 2000, Chadwick LJ, in refusing permission to appeal from the orders of Gray J, commented that the costs orders seemed inconsistent with the judge's intention as expressed in the transcript and suggested that there might be an application under the slip rule. Chadwick LJ did not, however, direct that such an application should be made.
9. Mr Cummings seeks to use Chadwick LJ's comment as a basis for challenging the whole of his eventual bankruptcy, based as it was on a statutory demand for £2,500 costs, after Drovers had already been put into compulsory winding up on the strength of a demand for £2,500 costs. There is, however, no evidence as to whether anything has been or will be paid to the lessor in consequence of the winding up of Drovers.
10. The form in which the orders made by Gray J have been drawn up is a little surprising. Either the judge meant each of the litigants to be severally liable for the sum of £2,500 or possibly (but to my mind less probably) he intended each of them to be jointly and severally liable for the sum of £5,000. The orders made have the effect that each litigant is liable for the sum of £2,5000 in respect of the combined costs of the two actions.
11. Such an order was within the judge's powers, and, even if it was a little unusual, it did not obviously cry out for amendment under the slip rule, nor, as I understand the judgment of Chadwick LJ, did he suggest that. As I read his judgment, he did no more than draw attention to the rather unusual terms of the order and the possibility of an application under the slip rule. On any view, I cannot see that any injustice is suffered if each of the two litigants is liable for the sum of £2,500 costs. There is nothing in the order to suggest that a payment of £2,500 by one of the litigants was intended to operate as a discharge of the liability of the other. As I have said, it is far from clear, in any case, that the liability of Drovers has been discharged, or will be discharged, in its winding up. The Official Receiver's official summary at the commencement of the winding up disclosed that the company had no assets at all.
12. In these circumstances, despite Mr Cummings' courteous submissions to me, I can see no reason to suppose that his appeal to Judge Rich from the refusal of the Registrar to annul the bankruptcy would have had any prospect of success at all. It is not therefore necessary to inquire further into the details of what happened on 10th November 2000 in Judge Rich's court. That appeal had no reasonable prospect of success and so the court would not, in the exercise of its discretion, set it aside to enable there to be a rehearing.
13. I must therefore dismiss this application.
Order: Application dismissed.