Byatt v Browne

Where an order has already been appealed to the High Court, a further appeal cannot be brought to the High Court against that order. A deputy High Court judge has the same powers as a full-time High Court judge. An adjournment sought to obtain legal representation may be refused where the application is bound to fail even with representation. A second appeal must satisfy the additional requirement of raising an important point of principle or practice, or involving another compelling reason.

Mr Browne sought permission to appeal against an order of His Honour Judge Behrens, sitting as a deputy High Court judge in the Chancery Division. Judge Behrens had struck out an application by Mr and Mrs Browne to set aside bankruptcy-court orders concerning the transfer of a property, because those orders had already been appealed to the High Court and affirmed by Mr Peter Leaver QC.

The application also challenged the refusal of an adjournment to obtain legal representation. The Court of Appeal considered the jurisdictional and procedural issues, rather than the merits of the original bankruptcy orders.

1. Application refused. The court refused permission to appeal against Judge Behrens’s order. The merits of the bankruptcy orders were not before it.
2. A deputy judge of the High Court has all the powers of a full-time High Court judge. Mr Leaver QC and Judge Behrens were therefore at the same level in the judicial hierarchy.
3. The orders made by His Honour Judge Farnworth had already been appealed to the High Court and affirmed by Mr Leaver QC. There could consequently be no further appeal to the High Court against those orders. Judge Behrens was right to conclude that the application before him was bound to fail and to strike it out.
4. Although it is exceptional to refuse an adjournment sought to obtain legal representation, refusal was justified because the application was bound to fail even if representation were obtained.
5. The possible route was an application to appeal out of time against Mr Leaver QC’s order. The Court of Appeal could not treat the present application as such because the relevant documents were not before it. Any appeal from that order would also be a second appeal. Under the Civil Procedure Rules rule 52.13, it would require an important point of principle or practice, or some other compelling reason. Those conditions could not be satisfied where there was no prospect of success.
6. There was no order for costs. A transcript was to be supplied to the applicants at public expense.

• Court of Appeal (Civil Division): Permission to appeal against Judge Behrens’s strike-out order was refused.
• High Court, Chancery Division: Mr and Mrs Browne appealed under section 375 of the Insolvency Act 1986. Mr Peter Leaver QC dismissed the appeal and affirmed Judge Farnworth’s orders.
• Bankruptcy Court: Judge Farnworth made orders concerning the property transfer, including an order dated 12 May 1998 and a varied order dated 6 January 1999.