Ex parte Austintel Ltd

An insolvency rule giving finality to a judge’s decision may exclude both reconsideration and an appeal, even where general statutory provisions confer review or appellate rights. Subordinate legislation made under an enabling Act has statutory force and must be read with the enabling legislation. A general procedural rule cannot confer Court of Appeal jurisdiction where legislation makes the relevant decision final.

Whether multiple searches of insolvency records are made for a proper purpose is a separate merits question. Such applications must be assessed individually, having regard to the applicant’s business and any safeguards or undertakings.

Austintel Ltd sought access to insolvency records at Liverpool District Registry under Insolvency Rules 1986 rule 7-28. District Judge Kopf refused the application, and Jonathan Parker J refused Austintel’s renewed application on 8 May 1996.

Austintel applied to the Court of Appeal under RSC Ord. 59, r. 14(3). The central issue was whether rule 7-28(3), which made the judge’s decision final, excluded the Court of Appeal’s jurisdiction despite the general appeal provisions in the Supreme Court Act 1981, the Insolvency Act 1986 and the Insolvency Rules.

Jurisdiction

1. The Court of Appeal unanimously held that it had no jurisdiction to entertain the application. Section 18(1)(c) of the Supreme Court Act 1981 excludes an appeal from a decision made final by an Act or by subordinate legislation authorised by an Act.
2. Morritt LJ and Ward LJ held that the Insolvency Rules 1986 had statutory force because they derived their legal effect from the Insolvency Act 1986. Rule 7-28(3) therefore fell within the statutory reference to a decision made final.
3. Rule 7-28(3) was a specific and unqualified finality provision. It prevailed over the general provisions allowing review, rescission or variation under section 375(1) of the Insolvency Act 1986 and rule 7-47(1), and also over the provisions allowing an appeal or leave to appeal under section 375(2) and rule 7-47(2). The word judge referred to the single High Court judge to whom an appeal lay from the registrar, not to the Court of Appeal.
4. RSC Ord. 59, r. 14(3) concerned applications incidental to a substantive appeal. It could not create jurisdiction to entertain an application where a substantive appeal for the same relief was excluded.

Obiter observations

Morritt LJ, Ward LJ and Potter LJ expressed concern about the effect of computerised records and wholesale searches. Ward LJ’s observations were expressly obiter and tentative. He considered that searches for credit-control purposes or to support a creditor’s legitimate interests might have a proper purpose, including searches conducted by an agent for named customers. Potter LJ emphasised that applications for multiple searches required individual assessment, having regard to the applicant’s business and any undertakings or safeguards. The court expressed no concluded view on the merits of Austintel’s proposed searches.

Order: application refused.

1. Court of Appeal: On 31 October 1996, the Court held that rule 7-28(3) excluded its jurisdiction and refused Austintel’s application.
2. High Court: Jonathan Parker J refused Austintel’s renewed application on 8 May 1996.
3. District Registry: District Judge Kopf refused the original application on 11 January 1996.