Cullen v Whinhurst Investments Ltd

Where an applicant misses a listed permission hearing for a proper reason, the court should provide an opportunity to present the application in person where attendance was impracticable. On a second appeal, the requirements in section 55(1) of the Access to Justice Act 1999 must be considered. Further material showing a real possibility of a compelling need for appellate consideration may justify an adjourned, on-notice oral hearing before a larger court. In related, long-running bankruptcy proceedings, the court may direct consideration of transferring connected proceedings and stay enforcement while the appellate arrangements are resolved.

Mary Philomena Cullen applied to reinstate her application for permission to appeal from an order made by Pumfrey J on 4 May 2001 refusing to annul a bankruptcy order made in March 1987. The permission application had previously been listed, but she had not attended because of a hospital appointment. Related High Court proceedings concerned the trustee’s application for possession of the applicants’ home. The central issues were whether the non-attendance had a proper explanation, whether further material justified reconsideration of permission for a second appeal, and whether the related possession appeal should be transferred or stayed.

The application was not finally determined on its merits. Lord Justice Chadwick made the following directions.

1. The applicant’s non-attendance at the earlier hearing had a proper explanation. It was not practicable for her to attend court and return to Camberley in time for her hospital appointment. She should therefore have an opportunity to present her application in person.
2. The application concerned permission for a second appeal. The court had previously considered that the requirements in section 55(1) of the Access to Justice Act 1999 were not satisfied on the material then available. The further material suggested a real possibility that the court could be persuaded that there was a compelling need to deal with the matter in the Court of Appeal. The application was accordingly adjourned for an on-notice hearing before a two-judge court, with appeal to follow if permission were granted.
3. The bankruptcy had continued for about 15 years and involved repeated applications in different courts. The related High Court possession appeal should, if possible, be before the Court of Appeal at the same time. The applicant was directed to seek an order under CPR 52.14 transferring that appeal. If no transfer order was made by 21 June 2002, she was to apply to the Court of Appeal under section 57 of the Access to Justice Act 1999.
4. Further proceedings in the bankruptcy were stayed until the matter returned to the Court of Appeal. The stay included enforcement of the existing possession order, subject to an application by the trustee to set it aside. A transcript was to be provided to the applicant at public expense.

1. Court of Appeal (Civil Division): The application for permission to appeal was adjourned for an on-notice hearing before a two-judge court. A stay of further bankruptcy proceedings, including enforcement of the possession order, was granted.
2. High Court, Chancery Division (Bankruptcy Court): Pumfrey J made an order on 4 May 2001 refusing to annul the bankruptcy order.
3. Earlier Court of Appeal hearing: The application for permission had been listed on 7 December 2001, but the applicant did not attend. The present application sought reinstatement or reconsideration of that permission application.