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
QUEEN'S BENCH DIVISION
(His Honour Judge Playford QC
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Friday 8th March, 2002

1. LORD JUSTICE TUCKEY: This is an application for permission to appeal by Miss Doreen Tibbs from a decision of Judge Playford QC given on 25th July 2001. The judge allowed in part an appeal from an order made by Master Tennant giving the claimant permission to amend her particulars of claim. In substance, however, both the Master and the judge had to decide whether the claims advanced against the defendant council stood any real prospect of success.
2. The claims arise out of the bankruptcy of the applicant on 11th November 1996. The petitioning creditor's debt was paid off on 27th February 1997. However, the defendant council as the sole supporting creditor in the bankruptcy claimed a debt of £56,431.26 for rates on a number of properties and for Council Tax. The applicant denied she owed them anything and protracted correspondence ensued between her trustee in bankruptcy and the council, who maintained that they were owed what they had claimed.
3. Ultimately, on 16th February 1999, the trustee rejected the whole of the council's claim, apart from £2,048.70. The applicant paid this amount under protest, maintaining that she did not owe anything, and on 29th April 1999 the bankruptcy was annulled on the basis that she had paid her debts in full.
4. Her basic complaint in these proceedings is that her bankruptcy was prolonged for approximately two years as a result of the council's unjustified and unjustifiable claims against her, and that she suffered a number of identified financial losses as a result. Formulation of the claim has not been aided by the fact that at various times the applicant has acted in person. But at the hearings before the Master and the judge the applicant was represented by counsel, Mr Graham, and for the purpose of today's hearing Mr Graham has prepared a very helpful skeleton argument, although he has not in fact appeared before me.
5. The Master allowed the claim to be put on the basis of misfeasance in public office, negligence, malicious prosecution and/or malicious falsehood. The council appealed and the judge struck out all but the claim for misfeasance in public office.
6. The proposed appeal, as I follow Mr Graham's skeleton argument, is rightly confined to an attempt to reinstate the claim for malicious prosecution and is largely based on new evidence which the applicant contends shows that she was right to dispute, even the much reduced amount which she paid under protest in order to have her bankruptcy annulled.
7. This amount related to one property, 153 Whitecross Street, London EC1, for which documents which she has recently discovered show that if she owed anything it was less than £750, which is the minimum amount required to found a petition for bankruptcy. The significance of this is that in allowing the appeal from the Master's order in relation to the malicious prosecution claim, the judge attached considerable weight to the fact that at least the claimant owed the council more than the statutory minimum. So, he said, it could not be argued that the council had wrongfully supported the petition, or that the bankruptcy proceedings were determined in the applicant's favour, or that they had acted without reasonable or proper cause - all necessary ingredients for the tort in question.
8. The judge also expressed doubt as to whether a supporting creditor could be said to prosecute the bankruptcy proceedings, and about the way in which the allegation of malice had been pleaded. But I do not read his judgment as saying that these doubts were determinative.
9. All I need say at this stage is that if the new evidence is admitted there is a real prospect that this court would reinstate the malicious prosecution claim. For that reason I will give permission to appeal. The new evidence is apparently credible, but it will be for the court hearing the appeal to decide whether to admit it and what weight to attach to it based upon an application to do that made in the proper form, which I have attempted to explain to the applicant should be prepared with at least the assistance of legal advice. That has not been done so far. Nor is the notice of appeal framed in a way which confines the appeal to the only point upon which I am giving permission to appeal, which is the reinstatement of the claim for malicious prosecution.
10. I should add that if the court decides not to admit the evidence, the applicant's prospects of success on the appeal must be regarded as poor.
ORDER: Application for permission to appeal granted; application for permission to rely on further evidence adjourned to the full court. (Order not part of approved judgment)