McKay v Titley

Permission to appeal should be refused where the proposed grounds disclose no real prospect of success. An adjournment is a discretionary case-management decision. Appellate intervention requires a material error in the exercise of discretion or a plainly wrong decision; the applicant’s convenience is only one relevant factor. The absence of a respondent does not require the court to exercise its discretion to grant relief. Where a trustee in bankruptcy has been released before the hearing, the court has no jurisdiction to entertain an application for the trustee’s removal. Any consequential application dependent on that removal application falls away. Insolvency Rules rule 7.38 is unavailable unless its stated condition concerning costs decided by detailed assessment under an order for payment otherwise than out of an insolvent estate is satisfied.

The applicant sought permission to appeal from an order of HHJ Norris QC in the Chancery Division, Birmingham District Registry, following the dismissal of her application to remove the respondent, her trustee in bankruptcy, and for disclosure of the source of payment of his fees.

The first-instance judge proceeded in her absence, declined a further adjournment, held that she lacked status to seek the trustee’s removal, and rejected the associated disclosure application. The trustee had obtained his release on 12 February 2004 before the judgment was given. The central issues were whether the case should have been adjourned, whether the trustee’s absence affected the application, whether the applicant could pursue disclosure under Insolvency Rules rules 6.132 and 7.38, and whether the remaining grounds had any realistic prospect of success.

Application refused. Lady Justice Arden concluded that none of the five proposed grounds had a real prospect of success.

1. The decision not to adjourn was discretionary. The applicant’s convenience was relevant, but it was only one factor. Appellate intervention required proof that the judge had taken an irrelevant matter into account, failed to consider a material matter, or reached a plainly wrong decision. The first-instance judge had dealt carefully with the matter.
2. The trustee’s non-attendance did not require the court to order his removal. The absence of a respondent was materially different from the absence of an applicant, whose non-attendance may waste allocated court time and delay other litigants.
3. Even assuming that the judge had been wrong to find that the applicant lacked status to seek removal, the trustee had obtained his release before the hearing. There was therefore no jurisdiction to entertain the removal application because he had ceased to hold that office. The disclosure application, being dependent on the removal application, fell away.
4. The applicant’s independent reliance on Insolvency Rules rule 7.38 failed. Its opening condition was not satisfied because the costs had not been decided by detailed assessment under an order directing payment otherwise than out of an insolvent estate. The rule consequently gave no right to details of the third party who had provided the costs.
5. Allegations concerning proxy solicitation and subrogation could not affect the result. By the relevant date there would have been no jurisdiction to remove the trustee, so any error on those matters would have made no difference.

Permission was refused. A copy of the transcript was directed to be sent to the applicant at public expense.

• Court of Appeal (Civil Division): Permission to appeal from the order of HHJ Norris QC was refused. The transcript identifies the lower-court judgment as having been given on 24 February 2004; no separate citation for that decision is stated.