Ebert v Official Receiver & Anor

A civil proceedings order under section 42 of the Supreme Court Act 1981 applies to an application made in the High Court’s bankruptcy jurisdiction. The expression “civil proceedings” should not be construed narrowly merely because bankruptcy involves status as well as adversarial litigation. An application under section 375 of the Insolvency Act 1986 therefore requires permission where the applicant is subject to a civil proceedings order. Permission to pursue repeated or previously determined challenges may properly be refused as an abuse of process, particularly where the applicant has already had full opportunities to raise the points.

The applicant, a litigant in person subject to a civil proceedings order under section 42 of the Supreme Court Act 1981, sought permission to appeal from decisions of Neuberger J refusing permission to make further applications. One proposed application concerned documents and matters arising in his bankruptcy, including a possible application under section 375 of the Insolvency Act 1986. The other sought to reopen the judgment debt and its assignment on grounds repeatedly rejected by the courts. A further application sought interim production of documents.

The central issue was whether an application in the bankruptcy jurisdiction was an application made in “civil proceedings” for the purposes of section 42, and whether Neuberger J had erred in refusing permission.

1. All applications dismissed. Lord Justice Keene agreed with the judgment of Lord Justice Robert Walker.
2. The court held that an application to the High Court made in the course of a bankruptcy is plainly an application made in civil proceedings within section 42 of the Supreme Court Act 1981. Bankruptcy has aspects of status and is not simply ordinary adversarial litigation, but that distinction did not justify a narrow construction of “civil proceedings”.
3. The court followed the reasoning in R v Highbury Magistrates Court ex parte Ewing [1991] 3 AER 192, in which the court held that a civil proceedings order applied even to a preliminary application for permission to seek judicial review. The decision in ex parte Waldron [1986] QB 824 was binding but arose in a materially different statutory and factual context and did not govern the present issue.
4. The court considered Re Wilson (a bankrupt) [1973] 1 WLR 314. A vexatious litigant could still submit a proof of debt in another person’s bankruptcy under the earlier statutory provision, but it was more doubtful whether the observations concerning an appeal from rejection of a proof remained applicable under the wider current wording.
5. Neuberger J had carefully considered the alleged procedural defects in the creditors’ meeting and the proposed attacks on the judgment debt, assignment and bankruptcy. He was entitled to conclude that the defects did not invalidate the meeting, that the challenges were substantially out of time or previously determined, and that renewed applications would constitute an abuse of process. The ancillary document-production application therefore also fell away.

• Court of Appeal (Civil Division): dismissed all applications and refused permission to appeal from decisions of Neuberger J.
• Chancery Division: Neuberger J refused permission under section 42 of the Supreme Court Act 1981 to pursue further applications concerning the bankruptcy and the underlying judgment debt.