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
CHANCERY DIVISION
(Mr Justice Rimer)

		Royal Courts of Justice Strand London, WC2 Monday, 2 December 2002

1. LORD JUSTICE SCOTT BAKER: The applicant seeks permission to appeal the order of Rimer J made on 26 April 2002. The background is as follows. Mr Sherman, the applicant, is the defendant in an action brought by Ashton Graham, a firm of solicitors, to recover losses that they claim to have suffered as a result of various share transactions that they conducted for Mr Sherman. Apparently they carry on business as an investment management service. Their claim amounted to some £87,000 plus interest.
2. On 19 July 2001 an order was made in that action against Mr Sherman that unless he made certain disclosure by 3 August 2001 he was debarred from defending and counterclaiming in the action. He did not comply with the order but instead applied without notice to the other side for an extension of time. This was refused by Deputy Master Behrens on 9 August 2001, who said that he would entertain such an application if it was served on the other side and supported by evidence, but no such further application was made.
3. The next event was an extremely significant one for Mr Sherman because on 6 September 2001 judgment was entered against him for £87,111.63 plus interest of £9,105.93 plus costs to be assessed if not agreed, and an order was made that £2,500 was to be paid by Mr Sherman on account of those costs. So there he was facing an established financial liability of very nearly £100,000. Mr Sherman says that he did not learn of this order of 6 September until 21 September 2001 and following that, on 2 October 2001, he applied to Pumfrey J asking for permission for a Mr Alexander to represent him. That application was, however, refused. Of greater importance for present purposes, on 8 October Deputy Master Behrens dismissed a without notice application which was apparently to set aside the order of 6 September. But Deputy Master Behrens did say that that was, as it was put, "without prejudice" to any fresh application being made on proper notice to the other side.
4. The next significant event was that on 27 November 2001 a statutory demand was served on Mr Sherman. Mr Registrar Baister refused Mr Sherman's application to set this aside on 29 November, and thereafter the way was clear for the claimants to present a bankruptcy petition on or after 13 December. On 14 December Mr Sherman applied unsuccessfully to Lightman J to set aside Mr Registrar Baister's order.
5. I move on to the next significant event, which was on 25 April 2002, when Mr Sherman applied, but again without giving notice to the other side, for the order of 6 September 2001 to be set aside pending his application to appeal that order. His without notice application came on on the following day, Friday 26 April, before Rimer J and it is the order made on that day that the applicant now seeks to appeal.
6. Following that, Mr Sherman applied without notice to Laddie J for adjournment of his bankruptcy petition, which was due for hearing on 20 May 2002. Laddie J rejected that application on 10 May and Mr Sherman was duly declared bankrupt on 20 May by order of the Kingston upon Thames County Court.
7. I return to the order that it is sought to appeal, that of Rimer J on 26 April 2002. The form of order reads as follows:

"UPON THE APPLICATION WITHOUT NOTICE of the Defendant for an Order to set aside the order of Master Bowles dated 6 September 2001 pending his Application for permission to appeal from the said Order

AND UPON HEARING the Defendant in person

IT IS ORDERED that the said Application be dismissed."

Mr Sherman was subsequently refused permission to appeal by Rimer J.

8. When I pointed out to Mr Sherman in argument that the overriding difficulty that he faced was that he never notified the other side of his intention to make an application to set aside the order, either initially to Deputy Master Behrens or on the second occasion to Rimer J, his answer was "I possibly didn't tell the other side. I was looking for lawyers that I could afford" and he explained that throughout he has been in an extremely precarious financial position. But it seems to me that that is no excuse for leaving the making of an application to set aside the order for as long as he did and, indeed, never telling the other side that he was proposing to do so.
9. Rimer J in the course of his judgment said this:

"Mr Sherman tells me that, since the Registrar's order, the claimant has presented a petition for his bankruptcy. But the bankruptcy petition has not yet been heard. Mr Sherman tells me that it is due to be heard on 20th May. I infer that the application today is motivated by desire to improve Mr Sherman's position on the return date of that hearing."

It will be noted, as I have pointed out, that subsequent to the hearing before Rimer J, Mr Sherman made an attempt to have the bankruptcy hearing adjourned, but that application was unsuccessful. It seems to me that Rimer J's observations in that paragraph that I have read were entirely justified. The learned judge continued:

"The history I have outlined provides no explanation at all as to why now, on 26th April, it has suddenly become appropriate to apply to stay execution of an order made as long ago as 6th September. In any event it would be wholly wrong to do so on an application of which no proper notice has been given to the claimant. I have no doubt at all that the claimant would have a good deal to say as to why no stay should be ordered.

I propose therefore to refuse this without notice application, no grounds having been disclosed to justify it. If Mr Sherman wishes to renew his application on proper prior notice to the claimant, then in principle he would be entitled to do so. I propose to make no order."

Mr Sherman did not avail himself of the suggestion there made by the learned judge.

10. I have read and reread the whole of the learned judge's judgment. It seems to me that, far from saying that there is any appeal that has any prospect of success, the learned judge was entirely correct. This is a quite hopeless application and in these circumstances the application for permission to appeal must inevitably be refused.
ORDER: Applications refused