England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(Mr Justice Lightman)

		The Royal Courts of Justice The Strand London Thursday 23 May 2002

Thursday 23 May 2002

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal against an order made by Lightman J on 10 December 2001 in proceedings in the bankruptcy of the applicant, Mr Robert Thorogood.
2. The bankruptcy order was made on 14 March 2000. On 15 November 2001 the applicant applied for an order under section 282 of the Insolvency Act 1986, annulling the bankruptcy order. That application was made in the Croydon County Court and was fixed for hearing on 22 April 2002. The application to Lightman J was for a stay of proceedings in the bankruptcy pending the hearing of the application for annulment which was to take place in the county court in what was then a few months' time.
3. The judge dismissed the application. His order dated 10 December 2001 appears on its face to have been made on an appeal from the county court and it is, at the least, likely that there will have been an earlier county court order refusing a stay. But no such earlier order has been included in the papers before me and Lightman J does not refer to it in his judgment. In those circumstances, I think it right to give the applicant the benefit of such doubt as there is and to treat this as an application for permission to appeal against an order which was not itself made on an appeal; that is to say, to apply the test under CPR 52.3 rather than the more stringent test for a second appeal under CPR 52.13.
4. The judge dismissed the application before him because, as he said, he could see no basis for a stay in any of the grounds advanced on behalf of the applicant. There were three grounds advanced before him. The first was that the trustee in bankruptcy had entered into a settlement of a claim against Lloyds Bank Plc on terms which the applicant regarded as unfavourable. The judge saw no basis for criticism of the trustee in bankruptcy's decision to enter into that compromise or settlement. But in any event, as the judge pointed out, even if that decision could be challenged, the potential for challenge provided no reason for a stay in the bankruptcy proceedings.
5. Second, the Croydon County Court had made an order on 20 November 2001 for the public examination of the applicant. That public examination had taken place and it had revealed the existence of certain assets against which the trustee in bankruptcy had asserted claims. The applicant contended before the judge that that order had infringed his human rights. The judge thought that unlikely; but he pointed out that, if there had been an infringement of the applicant's Convention rights, the point could be taken in any proceedings in which the trustee in bankruptcy sought to use the information obtained through the public examination to support his claims to recover assets. The complaint of infringement of Convention rights in relation to the public examination -- even if made out -- provided no basis for a stay of proceedings in the bankruptcy.
6. Third, the applicant had suggested that there were grounds upon which he could apply to remove the trustee in bankruptcy from office. But no such application had been made. If it were made, and were successful, the outcome would be that a new trustee in bankruptcy would be appointed in the place of the trustee who was removed. That, again, was no reason for a stay of the bankruptcy proceedings.
7. The applicant filed an appellant's notice in this court on 2 January 2002. That notice was out of time; but the applicant asserts that the notice was posted on 21 December 2001 and that any delay in the notice reaching the Civil Appeals Office until after the end of the Christmas holiday was not his fault. I would not think it right to refuse this application on the ground that it was made out of time.
8. Had the application to annul the bankruptcy order been heard on 22 April 2002 -- as was originally intended by the Croydon County Court -- this present application for permission to appeal to this court would have been overtaken by events. The question whether or not the bankruptcy order should be annulled would have been resolved one way or the other by the county court; and, subject to any possible appeal to the High Court, there would be no basis for a stay pending appeal.
9. But the hearing of the application to annul the bankruptcy order has not taken place; for reasons set out by the applicant in his letter to the Civil Appeals Office dated 20 May 2002. The letter contains the following paragraphs:

"However, despite an LSC Certificate being in force and granted to annul this bankruptcy affording me legal representation to do so, the solicitors which would appear to be institutionalised malpractice broke their contract of retainer on 22 April 2002 at the prejudicial 11th hour causing prejudice and injustice. The hearing was adjourned, and the solicitors arranged for the LSC Certificate to be suspended. This is subject of a show cause...

I therefore have an LSC Certificate in force that would by means of a simple amendment cover my having legal representation at this Hearing. It is not at this time of writing discharged, it is only suspended. I cannot possibly have a fair hearing without legal representation that I am entitled to, as my principle 'weapon' is competent legal representation, which is essential if my appeal is to be fairly investigated as complex matters of law and fact need to be properly investigated at a fair hearing on the merits...

Given this explanation as it is clear that as a person with a Certificate in force but temporarily suspended it would not be possible for me as a litigant in person to remotely obtain justice without an adjournment. As the only inconvenience and prejudice is mine, I am requesting that the Court adjourn this hearing until the re-instatement of my Certificate to facilitate my instructing new solicitors, who will contact Civil Appeal's to re-list this hearing as I have an ex turpe cause Defence."

10. The application for an adjournment was referred to me. It was refused on paper; but at my direction the Civil Appeals Office wrote to the applicant on 21 May in these terms:

"Request for adjournment refused.

The application may be renewed at the oral hearing on 23rd May 2002, upon production of a letter from the solicitors currently instructed by the applicant which explains (with dates) the steps that have been taken to restore/re-instate the applicant's LSC certificate and their assessment of the likely outcome."

11. The applicant responded by letter dated 22 May 2002. That letter does not meet the request made in the Civil Appeals Office's letter of 21 May 2002. In particular, the letter does not indicate whether or not the applicant has consulted a solicitor; it does not indicate whether or not he has received advice that his application to restore or reinstate the LSC certificate has any prospect of success, or when it is like to be heard. In those circumstances, I am not persuaded that any purpose would be served by an adjournment of the application listed for hearing today. There is nothing to indicate that, if the adjournment were granted, the applicant would, in due course, be in a position to make his application with the benefit of legal representation.
12. The applicant has chosen not to attend today. He indicated in his letter of 22 May 2002 that he would not do so. I have to consider, therefore, whether to dispose of his application in his absence. I have taken into account the grounds of appeal and the arguments in support of those grounds set out in the appellant's notice. I am not persuaded that there is any prospect of a successful appeal against the order made by Lightman J on 10 December 2001. The question whether or not to grant a stay of bankruptcy proceedings -- which had by then already been in progress for some 21 months -- was pre-eminently a question for the judge to decide in the exercise of his discretion. There is nothing in the material which I have seen to suggest that the judge exercised his discretion on a basis that could be challenged. There is nothing to suggest that this court would think it right to interfere with the judge's decision.
13. Accordingly, the application for permission to appeal and the application for an adjournment are refused.
ORDER: Applications refused