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
(MR L HENDERSON QC
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London, WC2 Thursday, 24th October 2002

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal from the judgment of Mr L Henderson QC, sitting as a deputy High Court judge, given on 12th July 2002. By his judgment he dismissed an appeal of Mr Kent from the decision of Deputy Registrar Barnett, who had refused to annul a bankruptcy order made on 12th February 2002.
2. Mr Kent has written to the court to explain that he is now living in Glasgow and both he and his wife are disabled pensioners. His wife is currently bedridden and cannot be left to enable him to make an overnight trip to London. In those circumstances, he has asked the court to decide his application upon the documents. I have therefore decided to give judgment in open court and I order that a copy of my judgment should be supplied to Mr Kent at public expense.
3. I can take the background facts from the judge's judgment. Mr Kent and his wife owned a property in the south of France which they let to holidaymakers during the season. Ms Dethlefsen and Mr Waughman had booked a holiday for themselves and a party of eight others for two weeks in August 2000 at a price of £1,600 per week. In July the booking was cancelled, I believe by Ms Dethlefsen and Mr Waughman. Mr Kent did not accept that the cancellation was justified and sued them in the Cambridge County Court for the unpaid balance of the booking price. A counterclaim was lodged for return of their deposit and damages in excess of £4,000 for prepaid flight bookings and other alleged items of loss flowing from the cancellation.
4. The case was decided in the absence of Mr Kent, who I believe by that time had moved to Scotland. The court made an order in these terms:

"1. There be Judgement for the Defendant for the sum of £1,212.00 payable within 14 days from the date of this Order.

2. The Claimant's claim herein be struck out."

5. The defendant was named as Ms Anne Dethlefsen. There was no mention of any other defendant.
6. Mr Kent avers that the judge made an error as to fact and that the holiday had been booked by Ms Dethlefsen and her partner and that the order should have been made, if at all, in both of their names.
7. Mr Kent failed to pay the judgment debt and a statutory demand was issued by Ms Dethlefsen. The debt was still not paid, and on 28th August 2001 a bankruptcy petition was presented based upon the statutory demand. On 4th February 2002 Mr Kent's application for permission to appeal out of time against the Cambridge County Court judgment was refused on paper. On 12th February 2002 a bankruptcy order was by Deputy Registrar Nicholls. Mr Kent did not appear.
8. The money was not paid. However, a cheque for £1,200 made out to both Ms Dethlefsen and her partner was sent to them. They handed it to Mr Kent's trustee in bankruptcy. Thereafter there followed an application to annul the bankruptcy order. That application was dismissed by Deputy Registrar Barnett on 19th April 2002. Again, Mr Kent did not attend.
9. On 12th July 2002 Mr Kent appealed against that order. His application was dismissed by the judge and it is against that decision that Mr Kent seeks permission to appeal.
10. The two main issues which came before the judge were, firstly, a point of law, namely that Mr Kent argued that the debt was owed to two people jointly. That being so, one of the debtors could not petition. The judge rejected that submission as a ground of appeal. He held that he was not in a position to go behind the order that had been made by the County Court awarding £1,212 to Ms Dethlefsen. He postulated that there might be a proper explanation as to why the money had been ordered to be paid just to one person.
11. The second point argued by Mr Kent was that an adjournment should have been granted. As to that, the judge said that if it be assumed that there had been a letter requesting an adjournment, the question he had to consider was whether the order should not have been made on the grounds that existed at the time. He said:

"I cannot say on the material now before me that the decision in those circumstances to refuse an adjournment ought to have been different if the letters had been before the court. The Registrar might or might not have taken a benevolent view and granted a short adjournment. It would have been a matter for his discretion. It is not a case where I can be satisfied that the order ought not to have been made because the only reasonable course for him to have taken would have been to grant the adjournment."

12. I will come to the grounds of appeal in a moment. However, it is important to note that this is a second-tier appeal, so that the provisions of the Access to Justice Act and CPR 52.13 apply. CPR 52.13 states as follows:

"(1) Permission is required from the Court of Appeal for any appeal to that court from the 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."

It will be noted that this imposes a high standard before permission can be granted.

13. The grounds of appeal put forward are three. First, Mr Kent contends that a 2-page statement produced by Ms Dethlefsen was misleading and unsupported by any evidence. Particulars are not given of that in the notice of appeal.
14. Secondly, Mr Kent says that two recorded delivery letters were sent to the court prior to the hearing of 12th February 2002 and that the Deputy Registrar should have had regard to those letters.
15. Thirdly, he contends that the petition and the order consequent was erroneous as the debt arose from an action brought against Ms Dethlefsen and her partner, Mr Waughman, as joint defendants. Mr Kent contends that because they were joint creditors, then as a matter of law they were required to present a joint petition for bankruptcy which they failed to do.
16. In my view none of those raise an important point of principle or law, or shows any compelling reason why this court should give permission to hear the appeal.
17. In those circumstances, the application must fail at its outset.
18. However, I will deal with the merits and in particular a written submission that has been sent to the court by Mr Kent, together with his letter dated 22nd October 2002. In it he sets out the background. He then comes to an allegation that the petitioner, Ms Dethlefsen, had fraudulently increased her claim from £1,212 to £4,355 on a basis of costs. He explains that those include such things as travelling and taxis. He then goes on to deal with the submissions that the official receiver made before the judge and how it contained misrepresentations of fact, including that he now owed in excess of £40,000. As to that he says that that is quite impossible. He and his wife are pensioners. They hardly take holidays; they buy clothes from charity shops and neither smoke nor drink and the whole thing is preposterous.
19. He then goes on to deal with the judgment. He submits the order made in Ms Dethlefsen's favour was mistakenly drawn as she was a joint defendant in the case, as confirmed by two letters from the court. He says that the statement that they made to the Deputy Registrar was not true. In those circumstances he presses again the third ground of appeal.
20. In my view, the allegations against the honesty and statements of Ms Dethlefsen are not pertinent to this application. Mr Kent seeks to annul the bankruptcy order, and that can only be on the basis that he either does not owe the debt or it has been paid off. There can be no doubt that he owes the debt. There is a court order in the bundle of papers. There has been no amendment of it. In those circumstances that part of the case must fail.
21. As to the second ground, the judge dealt with the letters and made the assumption that they were as he stated. But even so, rightly in my view, he dismissed the application.
22. The judge then went on to deal with the question as to whether the bankruptcy petition could be presented as there should have been joint petitioners. But as the judge pointed out, the debt arose from the judgment and that was a judgment in favour in just one of them. In those circumstances, I have no doubt that this application would have failed even if it had not been a second-tier appeal as there was and is no real prospect of it succeeding.
23. The application is therefore dismissed.
ORDER: Application for permission to appeal refused; applicant to be provided with a copy of this judgment at public expense. (Order not part of approved judgment)