Cullen v Whinhurst Investments Ltd & Anor

Permission to appeal from a High Court order made on an appeal from a lower court may be granted by the Court of Appeal only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason to entertain it. An application that is bound to fail does not satisfy that threshold and may be determined in the applicant’s absence. For an unrepresented appellant seeking a transcript at public expense, financial hardship alone is insufficient. The court must also be satisfied that there are reasonable grounds for appeal.

Three linked applications arose from litigation concerning Mrs Cullen’s bankruptcy, the annulment or rescission of the bankruptcy order, and the proposed sale of property. Mrs Cullen appealed against orders made by a district judge and dismissed by Pumfrey J. She sought permission to appeal to the Court of Appeal. Mr and Mrs Cullen separately sought permission to appeal against a wasted-costs order made when their appeals concerning the sale of their house were adjourned. The central issues were whether the statutory permission threshold was met, whether the first application should be heard in the applicant’s absence, and whether the transcript provisions had been properly applied.

1. Mrs Cullen’s application concerning the bankruptcy proceedings was dismissed. Under section 55(1) of the Access to Justice Act 1999, permission to appeal from a High Court order made on an appeal from a lower court could be granted only if the proposed appeal raised an important point of principle or practice, or there was some other compelling reason for the appeal to be entertained.

2. The grounds advanced did not satisfy that statutory test. The first two grounds could have been raised in the earlier proceedings before Scott J and the Court of Appeal. The third ground could not assist because, if the district judge had no jurisdiction under section 375 of the Insolvency Act 1986, the applicant could not improve her position by challenging the basis on which the application had been considered.

3. The court was entitled to deal with the application in Mrs Cullen’s absence. The application was bound to fail, and no ground had been shown capable of satisfying section 55(1) of the 1999 Act.

4. The applications by Mr and Mrs Cullen concerning the wasted-costs order were adjourned for hearing on notice to the trustee, with any appeal to follow if permission were granted. The circumstances indicated that Mrs Cullen had reasonably understood that the listed hearing would concern only the transcript issue, and there was force in her objection to the substantive appeal having been pursued and costs imposed when she was unprepared.

5. Under paragraphs 5.17 and 5.18 of the practice direction relating to CPR 52, public funding of an official transcript required both sufficiently poor financial circumstances and reasonable grounds for appeal. The district judge had been entitled to conclude that the financial condition was met but that reasonable grounds for appeal had not been shown.

6. A transcript of the Court of Appeal’s judgment was directed to be prepared at public expense and sent to both sides. The parties were invited to consider setting aside the wasted-costs order by consent.

• Court of Appeal (Civil Division): dismissed application 2001/1900 under section 55(1) of the Access to Justice Act 1999; adjourned applications 2001/1614 and 2001/1615 on notice, with appeal to follow if permission was granted.
• High Court, Chancery Division: Pumfrey J dismissed Mrs Cullen’s appeals against the district judge’s orders and refused permission to appeal. A deputy High Court judge adjourned the appeals concerning the sale of the property and ordered payment of wasted costs.
• County Court: the district judge dismissed the application to annul the bankruptcy order, later rescinded and then set aside an earlier conditional order, and dismissed the applications concerning the order for sale.