Cummings v Inntrepreneur Pub Company (GL)

An appellate court will not set aside a dismissal to permit a rehearing where the underlying appeal had no reasonable prospect of success. The court may therefore decide the merits of the proposed appeal before investigating an alleged procedural failure affecting the hearing below. A costs order requiring each of two connected litigants to pay a specified sum may be within the judge’s powers, even if its drafting is unusual. An apparent inconsistency between the drawn order and the judge’s intention does not, without resulting injustice, justify amendment under the slip rule or provide a basis for annulling a bankruptcy founded on the costs liability.

The lessor presented a creditor’s petition against Edward Cummings, and a bankruptcy order was made in his absence. His application to annul the bankruptcy order was dismissed by the registrar. His appeal to His Honour Judge Rich QC was then dismissed when he failed to attend, although he arrived shortly afterwards.

Mr Cummings sought permission to appeal, relying principally on the terms of earlier costs orders made by Gray J and on the circumstances of his non-appearance before Judge Rich. The central issue was whether there was any realistic prospect that the appeal to Judge Rich would succeed.

1. Underlying merits. Lord Justice Robert Walker examined the proposed challenge before investigating the circumstances of the missed hearing. The costs orders arose from two linked proceedings involving Mr Cummings and Drovers Ltd. Each drawn order required the relevant defendant to pay £2,500 for the combined costs of the two appeals.
2. Validity and effect of the costs orders. Although the drafting was unusual, the order was within Gray J’s powers. It was open to read each litigant as liable for £2,500. Nothing in the order showed that payment by one litigant was intended to discharge the other’s liability. The possible inconsistency between the transcript and the drawn order did not obviously require correction under the slip rule.
3. Prospect of success. The comments of Chadwick LJ concerning a possible slip-rule application did not undermine the costs liability or establish any injustice. The uncertain position concerning payment through Drovers’ winding up also gave Mr Cummings no sufficient basis for challenging the bankruptcy.
4. Disposition. The appeal to Judge Rich had no reasonable prospect of success. The court therefore declined to set aside the dismissal for a rehearing and dismissed the application for permission to appeal.

• Court of Appeal (Civil Division): The application for permission to appeal was dismissed.
• High Court, Chancery Division: His Honour Judge Rich QC dismissed Mr Cummings’s appeal from the registrar’s refusal to annul the bankruptcy order.
• Bankruptcy proceedings: Mr Registrar Rawson dismissed the application to annul the bankruptcy order, which had been made following the lessor’s creditor’s petition.