Multicultural Media Centre For The Millennium Limited v Millennium Commission

Where a petitioner seeks to rely on essential evidence served shortly before a winding-up hearing, the court must ensure that the respondent has a fair opportunity to understand and answer it. A litigant’s consent to the hearing continuing does not necessarily waive that requirement. If a fair hearing cannot proceed, the court should exclude the late evidence or direct an adjournment. Careful judicial consideration of the late evidence cannot substitute for informed submissions from the opposing party. The appropriate remedy may be to set aside the order and remit the petition for rehearing.

The Millennium Commission petitioned for the winding up of the company under the Insolvency Act 1986, alleging that grant funds were repayable. The company disputed the debt and advanced counterclaims. Shortly before the hearing before Rimer J, the Commission served a substantial affidavit and exhibits containing the principal evidence supporting its petition.

The judge offered Mr Harte, who represented the company in person, an adjournment. He declined and the hearing proceeded. The judge found that the debt was not substantially disputed and made a winding-up order on 6 December 2000. The central issue on appeal was whether the hearing had been fair in circumstances where the company had not had sufficient time to consider and answer the evidence essential to the petition.

1. Appeal allowed. The winding-up order was set aside and the petition was remitted to the Chancery Division for rehearing before another judge. The petitioner was ordered to pay the company’s appeal costs and costs incurred after 22 November, including Mr Harte’s costs.
2. The Commission required permission to rely on the affidavit served on 21 November 2000 because the procedural timetable contained no provision for that further evidence. Without it, the petition was bound to fail; but with it, a fair hearing could not take place on 28 November because Mr Harte had not read it and could not reasonably be expected to master the extensive and complex material during the hearing.
3. Although Mr Harte declined the judge’s offer of an adjournment, the judge should have directed one if the new evidence was admitted. Consent did not make an unfair hearing an available option. The proper choice was to exclude the affidavit or adjourn the hearing.
4. The judge’s careful examination of the evidence and reservation of judgment did not cure the defect. Judicial scrutiny cannot replace the respondent’s own informed submissions. Nor could the defect be cured on appeal by inviting the Court of Appeal to consider Mr Harte’s written response for the first time.
5. The Court distinguished the circumstances discussed in Lloyds Bank Plc v Dix & Another, where an adjournment was found incapable of affecting the outcome. Here, the appellate court could not conclude that an adjournment would have made no material difference.

• Chancery Division: Rimer J made a winding-up order on 6 December 2000 under the Insolvency Act 1986.
• Court of Appeal (Civil Division): The appeal was allowed. The order was set aside and the petition remitted for rehearing before another judge.