England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Thursday, 26th April 2001

Thursday, 26th April 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Mark Howell in person. He applies first for permission to bring the appeal out of time and, secondly, for permission to appeal in relation to costs orders made in bankruptcy proceedings brought against him by Mr and Mrs Virani.
2. Mr and Mrs Virani served a statutory demand dated 23rd August 1999 on Mr Howell for the sum of £8,000 based on an amount which they said he had received by way of rent which was due to them. The statutory demand was not complied with. On 28th October 1999, Mr and Mrs Virani presented a bankruptcy petition on which an order was subsequently made on 19th January 2000. Mr Howell then paid a sum of money to Mr and Mrs Virani, and the bankruptcy order was annulled. Mr Howell was ordered to pay costs. That order was made by Registrar Baister on 21st January 2000.
3. Mr Howell appealed. The hearing was due to take place on 5th May. Mr Howell did not appear on that occasion and it was proceeded with in his absence. Costs were assessed at £1,500.
4. There was a further hearing on Mr Howell's application before a Deputy High Court Judge, Mr Kim Lewison QC. The judge gave Mr Howell an opportunity to make representations, but the result of the hearing, as recorded in the order dated 18th May, was this: It was recited that Mr Howell had applied to re-instate his appeal of 5th May, and that he appeared in person and counsel appeared for Mr and Mrs Virani. It was then ordered that the appeal from Mr Registrar Baister of 21st January heard on 5th May by the deputy judge be re-instated. The appeal was allowed insofar as the petition in bankruptcy against Mr Howell was to be dismissed, but the orders for costs against which Mr Howell appeals were these. First, that Mr Howell pay Mr and Mrs Virani the costs of, and occasioned by, the bankruptcy petition and the statutory demand up to and including the hearing of 21st January 2000, such costs to be the subject of detailed assessment, if not agreed. Mr Howell had permission to appeal against that order.
5. Secondly, an order was made that the order of 5th May whereby he was required to pay respondents' costs of £1,500 should stand. He wishes permission to appeal against that order principally on the ground that he should have only been ordered to pay the costs thrown away. Costs were incurred in relation to the hearing of 5th May, which were not thrown away, because they were expended on work required to be done for the hearing which took place on 18th May. Finally, no order as to costs was made at the hearing of 18th May.
6. Mr Howell sought to have the orders for costs of 18th May rectified under the slip rule. That hearing took place on 2nd October. Mr Lewison refused to change the order under the slip rule. There is a transcript of the judgment given by Mr Lewison on that day.
7. Mr Howell sought permission to appeal to this Court against the order of 2nd October. There was an oral hearing of that application before Dyson LJ on 6th February 2001. He said in his judgment that the position was not entirely satisfactory in relation to the order of £1,500 assessed costs, but he concluded that the judge was entitled to say that the order of £1,500 should stand in the exercise of his general discretion in deciding what an appropriate order for costs should be made in the case.
8. Dyson LJ refused permission to appeal against the costs order for the costs incurred prior to 21st January 2000, saying that the judge intended, as he said, on 2nd October, that Mr Howell should pay the costs up to and including 21st January. In his judgment of 2nd October the deputy judge gave as his reason for reaching that conclusion that the drafting of the order of 18th May was not an accidental slip or omission.
9. What Mr Howell seeks to do now is to have permission to appeal against the order of 18th May instead of the order of 2nd October concerning the application under the slip rule. That is why he is asking for an extension of time. He says that the order of 18th May in relation to his costs up to 21st January 2000 was wrong. It is a different argument from that he presented to Mr Lewison, sitting as a deputy high court judge, and Dyson LJ in respect of the slip rule. He also says that the order in relation to the costs assessed at £1,500 are excessive.
10. He has made detailed submissions on this point. I indicated to Mr Howell that I am not satisfied by his submissions that he has a real prospect of succeeding on either of these applications. In particular, it would require very unusual circumstances for this Court to entertain an appeal about the amount at which costs are being assessed in the Court below – I refer to the £1,500.
11. There are, however, unsatisfactory features about this case. Mr Howell has told me that he wishes at the moment to pursue this, although I have warned him that this could have costs repercussions on him if he ultimately failed either to get permission to appeal or, if he gets permission, fails on the substantive appeal. Because I am not satisfied that he has a real prospect of success and equally because I am concerned about some unsatisfactory features of this matter, what I propose to do is to adjourn today's oral hearing for an inter partes hearing at which Mr and Mrs Virani will be entitled to be represented and make submissions to the Court in response to Mr Howell's conduct. If they are not satisfied on that point, then I would refuse permission to appeal.
12. I have already explained to Mr Howell that if that course is followed, Mr and Mrs Virani would be entitled to make a further application that he pays the costs of them having to attend the adjourned hearing of this application. He has told me that if a satisfactory explanation is provided to him by Mr and Mrs Virani or by their advisors before the adjourned hearing, he will consider whether he wishes to pursue it further. I will adjourn this hearing. Mr and Mrs Virani's solicitors to be notified of this. The matter is to be restored for an inter partes hearing preferably before the end of July. The matter will be heard by me on a date and time to be fixed.
(Application adjourned)