Thorogood v Jones & Co (Trustee)

Permission to appeal should be refused where there is no prospect of a successful appeal and no proper basis to interfere with a first-instance judge’s discretionary refusal of a stay. Possible future challenges to a trustee’s conduct, a public examination, or the trustee’s office do not themselves justify staying bankruptcy proceedings. An adjournment may also be refused where the applicant provides no sufficient evidence that legal representation will become available and the adjournment would serve no useful purpose.

The applicant sought permission to appeal against an order made by Lightman J in the High Court, Chancery Division, on 10 December 2001. The order refused a stay of bankruptcy proceedings pending the applicant’s application under section 282 of the Insolvency Act 1986 to annul the bankruptcy order.

The applicant relied on complaints about the trustee’s settlement of a claim, a public examination, and the possibility of removing the trustee. He also sought an adjournment because his LSC Certificate had been suspended. The issues were which permission test applied, whether an adjournment was justified, and whether there was any basis to interfere with the discretionary refusal of a stay.

1. Applicable permission test. The court treated the application as one for permission to appeal against an order not itself made on appeal. The papers did not establish an earlier county-court order, and the applicant was given the benefit of that doubt. The test under CPR 52.3 therefore applied, rather than the more stringent test for a second appeal under CPR 52.13.
2. Adjournment. The application for an adjournment was refused. The applicant had not provided the requested information from solicitors about steps to restore or reinstate his LSC Certificate, the prospects of success, or the likely hearing date. Nothing showed that an adjournment would place him in a position to pursue the application with legal representation. The application could therefore be determined in his absence.
3. Stay of bankruptcy proceedings. The refusal of a stay was a discretionary decision. The suggested criticism of the trustee’s settlement with Lloyds Bank provided no reason for a stay, even if the decision could be challenged. Any complaint that the public examination infringed Convention rights could be raised in proceedings in which information obtained at that examination was relied upon. A possible application to remove the trustee, if successful, would result in the appointment of a replacement trustee and likewise provided no reason for a stay.
4. Disposition. There was no prospect of a successful appeal and nothing to suggest that Lightman J had exercised his discretion on a basis that could be challenged or that the Court of Appeal should interfere. Permission to appeal and the application for an adjournment were refused. Order: applications refused.

• Court of Appeal (Civil Division): Permission to appeal and the application for an adjournment refused; [2002] EWCA Civ 826.
• High Court, Chancery Division: Lightman J dismissed the application for a stay on 10 December 2001.