Alty v Bargain Booze Ltd & Anor

On an application for permission to bring a second appeal, the Court of Appeal has no power to grant permission unless the further appeal raises an important point of principle or practice, or there is another compelling reason. An application concerning the correctness of a statutory demand cannot be converted into an appeal against an underlying consent order. The judgment records that rule 6.5(4)(d) of the Insolvency Rules 1986 does not confer a general discretion to set aside a demand merely because the creditor acted quickly. The application was refused.

Mrs Elsie Alty sought permission, with an extension of time, to bring a further appeal from an order of His Honour Judge Howarth made on 17 August 2001. That order dismissed her appeal from a Salford County Court decision refusing to set aside a statutory demand issued after default under a consent order in proceedings brought by the franchisers. The underlying dispute concerned stock supplied under retention-of-title terms and payment obligations. The Court of Appeal stressed that only the correctness of the statutory demand was before it. No application sought permission to appeal the consent order, which lay at the heart of the difficulties.

1. Application refused. The only application before the Court of Appeal was for permission and an extension of time to pursue a further appeal from Judge Howarth’s order. The formal order was that the application be refused.
2. Second-appeal threshold. Section 55 of the Access to Justice Act 1999 deprived the court of power to grant permission for a further appeal unless the proposed appeal raised an important point of principle or practice, or there was some other compelling reason. The court could not grant permission on an application which did not seek to appeal the relevant underlying order.
3. Scope of the application. The correctness of the statutory demand was the only issue before the court. The consent order made by Mr Recorder Goldstone QC, requiring payment of the judgment debt and costs by instalments, remained unchallenged. The court could not use the statutory-demand application as an indirect challenge to that order.
4. Statutory demand reasoning. The judgment recorded Judge Howarth’s conclusion that rule 6.5(4)(d) of the Insolvency Rules 1986 did not give the court a general discretion to set aside a statutory demand merely because the creditor had acted speedily. Judge Howarth had also reminded himself of section 271 of the Insolvency Act 1986. The Court of Appeal did not independently develop those points, because the application failed on its proper procedural scope and the second-appeal threshold.

• Court of Appeal (Civil Division): On 1 July 2002, Lord Justice Robert Walker refused the application for permission and an extension of time to pursue a further appeal, in [2002] EWCA Civ 1051.
• High Court, Chancery Division, Manchester District Registry: His Honour Judge Howarth dismissed the appeal from the Salford County Court decision.
• Salford County Court: Deputy District Judge Threxton refused to set aside the statutory demand.