Robinson v Carman

Section 54(4) of the Access to Justice Act 1999 bars an appeal against a court’s decision to grant or refuse permission under section 54, subject to any further application for permission allowed by the rules. An appeal governed by the insolvency practice direction is ordinarily a review rather than a rehearing. New evidence may be admitted only if the appeal court permits it. Permission should be granted only where there is a real prospect that the appellate court would find the lower court’s approach or conclusion wrong. A refusal to order disclosure after substantial delay, where the proposed material would not properly affect the review, did not meet that threshold.

The applicant had been made bankrupt in 1994 following a statutory demand for taxed costs owed to the respondent, who was trustee in bankruptcy of her parents. An application to set aside the statutory demand was dismissed, and permission to appeal was granted subject to a time limit which was not observed. In 2000, the High Court refused an extension of time and dismissed the appeal notice. It also refused an application for disclosure in the proposed appeal. The applicant sought permission to appeal to the Court of Appeal. The issues were whether the Court of Appeal could entertain an appeal against the refusal of permission and whether the disclosure decision had a real prospect of being overturned.

Lord Justice Chadwick gave the single judgment. Both applications for permission to appeal were dismissed.

1. The appeal against the order refusing permission to appeal could not be entertained. Section 54(1) of the Access to Justice Act 1999 permits rules of court to require permission for an appeal to the High Court or Court of Appeal. Section 54(4) provides that no appeal may be made against a decision under that section to give or refuse permission, subject only to any further application for permission permitted by the rules. The High Court decision of 10 October 2000 fell within that prohibition.
2. The disclosure application was governed by paragraph 17.18 of the Practice Direction Insolvency Proceedings. The appeal was limited to a review of the lower court’s decision, rather than a rehearing. Oral or new evidence would ordinarily be excluded unless the appeal court ordered otherwise. Intervention was justified where the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity.
3. The relevant permission test was whether there was a real prospect that the Court of Appeal would be persuaded that the High Court judge had adopted a wrong approach or reached a wrong conclusion. In light of the six-year delay, the applicant’s bankruptcy and the absence of a proper basis for disclosure, there was no such prospect.

There was no order for costs. A transcript was directed to be prepared at public expense and sent to the applicant.

• Court of Appeal (Civil Division) — On 12 December 2001, both applications for permission to appeal were dismissed: [2001] EWCA Civ 2021.
• High Court, sitting in bankruptcy — On 5 October 2000, Judge Behrens refused disclosure in the proposed appeal. On 10 October 2000, he refused an extension of time for service of a notice of appeal and dismissed the appeal notice.
• County Court — On 8 April 1994, District Judge Hawksworth dismissed the application to set aside the statutory demand and granted leave to present the bankruptcy petition. Permission to appeal was later granted subject to a time limit which was not complied with.