Abdul-Ghaffar Khan-Ghauri (t/a Glam Homes) v Dunbar Bank Plc & Ors

Permission to appeal out of time is principally determined by the merits of the proposed appeal, although the delay must also be adequately explained. A bankrupt has no right to pursue a cause of action that vested automatically in the trustee in bankruptcy on the making of the bankruptcy order. An application to vest disclaimed property cannot succeed without evidence that the property has been disclaimed. A costs order must also respect statutory protection for assisted persons while legal aid remains in force.

The claimant brought four actions against the bank and others concerning possession taken of his properties in 1992. Mr Justice Pumfrey dismissed the actions, rejected applications to strike out the bank’s defences, refused an application under section 320 of the Insolvency Act 1986, and ordered indemnity costs on 15 June 2000.

The claimant sought permission to appeal out of time. The Court of Appeal considered the delay, the alleged causes of action, the effect of the claimant’s bankruptcy in 1993, the section 320 application, and the indemnity costs order. A further issue arose concerning the claimant’s assertion that he had been legally assisted when the costs order was made.

1. The application for permission to appeal was refused on all substantive grounds. The delay was inadequately explained. The claimant had been present when the High Court judge gave judgment, and his asthma did not explain the failure to file an appellant’s notice within time. The court nevertheless concentrated principally on whether the proposed appeal had merit.

2. The causes of action relied upon concerned loss arising from events before the claimant’s bankruptcy. They therefore vested automatically in the trustee in bankruptcy under section 306 of the Insolvency Act 1986. The claimant could not pursue them personally after the bankruptcy order. His request for the Official Receiver’s consent did not alter that position.

3. Section 320 of the Insolvency Act 1986 applies where the trustee has disclaimed property under section 315. There was no evidence of disclaimer. The claimant was therefore not entitled to a vesting order, and the High Court was plainly right to dismiss the actions and the associated applications.

4. The indemnity costs order was within the High Court judge’s discretion. The claimant had been given an opportunity to address the court on costs. However, if his Legal Aid Certificate remained in force for part of the relevant period, costs attributable to that period could not be recovered without determining his liability under section 11 of the Access to Justice Act 1999.

5. The costs issue could not be determined on the material before the Court of Appeal. A further hearing was directed, limited to the claimant’s legal-aid status and its effect on the costs order. If permission to appeal were granted on that issue, the appeal was to follow immediately.

• Court of Appeal (Civil Division): Permission to appeal out of time refused on all substantive grounds. A further hearing was directed on the limited question whether the indemnity costs order was affected by the claimant’s alleged legal-aid status.
• High Court, Queen’s Bench Division: Mr Justice Pumfrey dismissed the claimant’s actions and applications on 15 June 2000, including the application under section 320 of the Insolvency Act 1986, and ordered indemnity costs.