Silver v Bradford & Bingley Building Society

Permission for a second appeal is available only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. The applicant must overcome that statutory and procedural hurdle. Permission should be refused where the lower court could not reasonably have reached another conclusion on the evidence, the proposed appeal raises no important point, has no realistic prospect of success, and presents no compelling reason for appellate intervention.

The applicant was a judgment debtor to the respondent building society. After the respondent served a statutory demand for the full judgment sum without crediting a payment made by the Law Society compensation fund, the applicant applied under rule 6.4 of the Insolvency Rules 1986 to set aside the demand.

The Deputy Registrar dismissed the application. His Honour Judge Behrens QC dismissed the applicant’s appeal, holding that the respondent remained entitled to enforce the unpaid balance. The applicant sought permission for a second appeal, arguing that he had a possible cross-claim arising from remedies allegedly not pursued by the respondent.

1. Application refused. Permission to appeal was refused.
2. Under section 55(1) of the Access to Justice Act 1999 and CPR 52.1.3, permission for a second appeal requires either an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal.
3. The alleged cross-claim had not been evidenced before the Deputy Registrar or Judge Behrens. There was no evidence establishing either its existence or its amount. On the evidence before the judge, he could not reasonably have taken a different view.
4. The proposed appeal raised no important point of principle or practice. It had no prospect of success and there was no compelling reason for the Court of Appeal to hear it.
5. The applicant remained free to raise any properly supported cross-claim, and any renewed application to set aside the statutory demand, before the Bankruptcy Court in connection with the pending bankruptcy petition. The Court of Appeal expressed no view on the prospects of such an application.

• Court of Appeal (Civil Division): Lord Justice Chadwick refused permission for a second appeal against the order of His Honour Judge Behrens QC.
• High Court, Chancery Division: His Honour Judge Behrens QC dismissed the appeal from the Deputy Registrar’s order.
• High Court in Bankruptcy: Mr Deputy Registrar Schaffer dismissed the application to set aside the statutory demand.