England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Roth
[2013] EWHC 4286 (Ch)

		Royal Courts of Justice Strand London, WC2A 2LL
		11 April 2014

1. LORD JUSTICE RIMER: This is a renewed application for permission to appeal, Lewison LJ having refused permission on the papers on 30 December 2013.
2. The proposed challenge is to part of an order dated 31 July 2012 made by Roth J in the Chancery Division. The matter before the judge was an application by the applicant, Spencer Michael, for permission to appeal against a Bankruptcy Restrictions Order ("BRO") made by Chief Registrar Baister on 13 December 2011. Roth J gave permission to appeal to appeal to himself on three grounds, of which the first was the "unfair hearing" ground. The outcome was that he dismissed that ground and also another one to which it is unnecessary to refer, but allowed the appeal against the BRO so as to reduce its duration by 18 months by advancing the expiration date from 7 July 2016 to 7 January 2015.
3. The first thing to notice, which I raised with Mr Khan, is that the appellant's notice was filed on 19 July 2013. So, at any rate, on the face of it, it would seem to have been filed very late in relation to an order that had been made on 31 July 2012. The explanation for the apparent delay is, however, that by paragraph 6 of his order, Roth J extended the time limit for applying for permission to appeal from his order to 21 days after the approved transcript of his judgment was sent out to the parties. For reasons which are not apparent, but perhaps do not matter, Mr Khan informs me that his client, Mr Michael, only received the approved transcript on 8 July 2013. That does seem to have been very late in the day. Nevertheless, on that basis, the appellant's notice later filed on 19 July 2013 was in time.
4. The amended grounds of appeal challenge Roth J's conclusion that the hearing before the Chief Registrar was a fair one. There was a practical problem in relation to that in as much as there was no transcript available, or indeed obtainable, of the proceedings before the Chief Registrar, but the applicant's point before Roth J was that the Chief Registrar interrupted and twice labelled the applicant as dishonest when he was making his submissions.
5. Roth J said that he proceeded on the basis that the applicant did suffer many interruptions and was told at least once that his answers in evidence were not regarded as honest. Whilst the judge could not, for reasons given, determine whether this was the case, he dealt with the appeal on the assumption that it was. He also recorded in his judgment that the applicant claimed that the Chief Registrar's interruptions were made in "an inconvenient, abrupt and aggressive manner" and that he was "hostile" to the applicant.
6. Mr Khan for the Applicant submits that, given the assumption on which Roth J proceeded, the judge was wrong to apply the apparent bias test explained in Lawal v Northern Spirit Limited [2003] UKHL 35 rather than the closed mind or predetermination test. The submission is that Roth J should have inquired into what had happened at the hearing before the Chief Registrar and as to whether the Chief Registrar had a closed mind.
7. Alternatively, Mr Khan submits if the apparent bias test was the right one to apply, that test was also satisfied since the fair minded and informed observer, having considered the facts as Roth J had assumed them to be, would consider there was a real possibility of subconscious bias.
8. Roth J himself said, at paragraph 58 of his judgment, in the context of the length of the BRO fixed by the Chief Registrar that:

"I cannot help feeling that the Chief Registrar may have been unduly influenced by [the applicant's] conduct in the proceedings before him and the irritation that had caused him."

9. That can be said to be the drawing by Roth J of an inference of bias and, the applicant asserts, served to flaw the fairness of the hearing before the Chief Registrar. If there is a proper ground for asserting that the Chief Registrar's decision was flawed by predetermination or bias, then it is also said, with force, that the decision cannot be allowed to stand even if the outcome above would have been the same had the case been heard by a truly independent tribunal.
10. The proposed appeal is a second appeal which must, if permission for it is to be given, cross the CPR Part 52.13 threshold. If, however, as I consider there is here, a properly arguable point as to the fairness of the hearing before the Chief Registrar on either predetermination or apparent bias grounds, then I regard that as providing a compelling reason for a second appeal.
11. The point by made by Roth J at paragraph 58 in his judgment appears to me to be of particular significance. I shall, therefore, give the applicant permission to appeal.