Eyers & Anor v Barclays Bank Plc

Under Access to Justice Act 1999, s 55, permission for a second appeal requires an important point of principle or practice, or another compelling reason. The threshold is not met where the proposed appeal is essentially concerned with construing a badly drafted settlement agreement already considered, with the same conclusion reached, by two lower-court judges. A possible alternative argument or the prospect that the matter might have been argued more fully below does not itself justify permission. The court may decline to determine whether the lower court reached its conclusion for the correct reasons where the statutory permission threshold is not satisfied.

Barclays Bank plc served statutory demands on Mr and Mrs Eyers following a settlement agreement concerning substantial personal liabilities connected with borrowings by companies operated by Mr Eyers. The statutory demands were not set aside by the Deputy District Judge Rooze. His Honour Judge Behrens, sitting as an additional judge of the Chancery Division, dismissed the Eyers’ appeal on 16 October 2000.

The Eyers sought permission for a second appeal. They relied principally on the construction of the settlement agreement and raised possible issues concerning trusts under an individual voluntary arrangement and attornment. The central question was whether the proposed appeal met the statutory threshold for a second appeal.

1. Application dismissed. The proposed appeal did not raise an important point of principle or practice, and there was no other compelling reason to permit a second appeal under s 55 of the Access to Justice Act 1999.
2. The dispute was essentially one of construction of a badly drafted settlement agreement. That agreement had already been considered by two judges, who had reached the same conclusion. The possibility that further arguments might have been deployed more successfully at an earlier stage did not satisfy the statutory test.
3. The proposed point concerning attornment was not an important point of principle or practice. The court was not persuaded that the issue justified permission.
4. The argument that a trust could never arise under an individual voluntary arrangement was substantially abandoned. Section 253(2) of the Insolvency Act 1986 contemplated the nominee acting as a trustee or otherwise in supervising implementation. Accordingly, the observations of Hoffmann J in Re Naeem [1990] 1 WLR 48, at 51, were not a statement of general principle. They were directed to the particular facts and costs issue in that case.
5. The judge noted, without deciding the issue as a basis for the application, that a secured creditor with notice of an individual voluntary arrangement might be bound so far as its security proved insufficient, whether or not it attended or voted at the creditors’ meeting, under s 260(2)(b) of the Insolvency Act 1986.
6. The judgment also observed that evidence of the commercial context of an agreement may be admissible and necessary, whereas evidence of negotiations ordinarily is not. The case illustrated the difficulty of maintaining that distinction.

• Court of Appeal (Civil Division): Permission for a second appeal was refused and the application was dismissed.
• Chancery Division: His Honour Judge Behrens dismissed the Eyers’ appeal from the Deputy District Judge’s refusal to set aside the statutory demands.
• Deputy District Judge: Deputy District Judge Rooze refused to set aside statutory demands served by Barclays Bank plc.