O'Brien v Haig

Permission is required for a second appeal unless a procedural exception applies. The applicant must show both a real prospect of success, or another compelling reason, and an important point of principle or practice, or another compelling reason. Whether business assets are exempt from a bankrupt’s estate under the Insolvency Act 1986 is ordinarily a matter of fact and degree. A Deputy High Court Judge has the same status and functions as a High Court Judge for the relevant purpose.

A bankruptcy order had been made against Barry O’Brien. His trustee in bankruptcy was Colin Haig. The Registrar dismissed Mr O’Brien’s application for a declaration that advertising hoardings and a trionic sign were exempt property under the Insolvency Act 1986. Mr O’Brien’s appeal to Mr Nigel Davis QC, sitting as a Deputy High Court Judge, was dismissed.

Mr O’Brien sought permission to appeal to the Court of Appeal. He challenged the classification of his business assets, complained of procedural unfairness, and argued that the Deputy Judge lacked jurisdiction. The issues were whether permission was required and, if so, whether the proposed appeal satisfied the statutory and procedural threshold.

1. Application refused. Mr O’Brien required permission to appeal. The proposed appeal would be a second appeal, so he had to establish a real prospect of success or another compelling reason, together with an important point of principle or practice or another compelling reason, under section 55(1) of the Access to Justice Act 1999. His case did not fall within the exceptions in Part 52.3(1) of the Civil Procedure Rules 1998.

2. The question whether the advertising hoardings and trionic sign fell within the exemption for tools, books, vehicles and other equipment necessary for personal use in a bankrupt’s business under section 282(2)(a) of the Insolvency Act 1986 was a matter of fact and degree. The Registrar and the Deputy Judge were not shown to be obviously wrong. The proposed appeal therefore had no real prospect of success and raised no important point of principle or practice.

3. The procedural-fairness complaint also had no real prospect of success. Although Mr O’Brien received the trustee’s skeleton argument shortly before the hearing, the Deputy Judge’s judgment showed that he had addressed all the points relied upon.

4. The jurisdiction objection was misconceived. Under section 9(4) and (5) of the Supreme Court Act 1981, a properly qualified Deputy High Court Judge may act as a puisne judge and is treated for all purposes as a High Court Judge. Mr Davis was therefore entitled to hear the appeal from the Registrar.

• Court of Appeal (Civil Division): Permission to appeal refused; the application was dismissed.
• High Court, Chancery Division in Bankruptcy: Mr Nigel Davis QC, sitting as a Deputy High Court Judge, dismissed Mr O’Brien’s appeal from the Registrar’s order.
• Registrar: Mr Registrar Baister dismissed the application for a declaration concerning exempt property.