Hurst v Bennett & Ors

On an application for permission to bring a second appeal, the Court of Appeal may adjourn rather than grant or refuse permission where the proposed appeal raises an unresolved point of principle or practice and the judges below have taken different views. The issue should be heard on notice, with both sides represented, before the court expresses a view on it. If permission is granted, the appeal may be directed to follow immediately before the same court. Pending that hearing, protective case-management orders may be made, including a stay of advertisement of a bankruptcy order with liberty to apply if circumstances change.

Mr Hurst sought permission for a second appeal from Ferris J, who had dismissed his appeal against Registrar James’s dismissal of an application under section 375(1) of the Insolvency Act 1986. The application concerned review of an earlier order dismissing an application for an interim order under section 252. The proposed appeal raised the relationship between sections 252, 253, 255(1)(c) and 375 of the Act. The lower judges reached the same result but differed on whether section 375 conferred jurisdiction. Only Mr Hurst’s submissions had been heard before Mummery LJ. The central issue was whether the application should proceed to a full, on-notice hearing and, if so, whether the appeal should follow permission.

1. Disposition. The application for permission to appeal was adjourned to a hearing on notice. Permission was neither granted nor refused.
2. The judgment recorded the two alternative thresholds for a second appeal under Part 52.13(2)(a) and (b) of the Civil Procedure Rules: an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal. The court did not decide whether either threshold was satisfied.
3. The proposed appeal concerned the interrelationship between sections 252, 253, 255(1)(c) and 375 of the Insolvency Act 1986. The disagreement between Registrar James and Ferris J about the scope of section 375 meant that the point warranted fuller argument. Since only Mr Hurst had been heard, it was premature to express a concluded view. The issue should be argued with both parties present.
4. If permission were granted, the appeal was directed to follow immediately before the same court.
5. Pending the on-notice hearing, a stay of advertisement of the bankruptcy order was granted. The Official Receiver had liberty to apply to lift the stay if circumstances changed. Copies of Ferris J’s judgment and this judgment were to be provided to the parties at public expense and with expedition.

• Court of Appeal (Civil Division): The application for permission to bring a second appeal was adjourned to a hearing on notice. The appeal was directed to follow immediately if permission were granted.
• High Court of Justice in Bankruptcy: Ferris J dismissed Mr Hurst’s appeal from an order of Registrar James dated 11 July 2001.
• Registrar in Bankruptcy: Registrar James dismissed the application under section 375(1) of the Insolvency Act 1986 to review an order dated 12 April 2001 dismissing the application for an interim order.