Canty & Anor v Boyden

An appellate court may determine an appeal at a resumed hearing where the appellant has already had a full opportunity to argue the relevant issues, understands the limited purpose of an adjournment, and can reasonably foresee that the merits may later be decided. A party who deliberately breaches an undertaking facilitating further evidence, supplies no further evidence, and chooses not to attend cannot then complain of lack of notice or opportunity to be heard. An appeal court will not reopen bankruptcy orders or consequential matters that have already been finally determined and are outside the permitted scope of the appeal.

Richard John Canty appealed against an order of Peter Smith J dated 9 June 2005. That order dismissed his appeal from a Cardiff County Court order authorising his trustee in bankruptcy, Patrick Michael Boyden, to enforce possession of Canty’s home for sale. The earlier applications concerned the possible recovery of costs and mesne profits, including an application under section 303(1) of the Insolvency Act 1986.

On 26 May 2005, Peter Smith J adjourned the hearing to allow further valuation evidence and medical evidence concerning Canty’s mother. Canty undertook to provide access for a valuation. He subsequently refused access, provided no further medical evidence, and did not attend the resumed hearing on 9 June. The judge set aside the adjournment order, dismissed the appeals, and ordered delivery of possession. Permission to appeal was granted on the issue whether Canty had received adequate notice and an opportunity to be heard.

1. Appeal dismissed. Sir Martin Nourse gave the judgment of the court. Dyson LJ and Buxton LJ agreed.
2. The Court of Appeal was concerned only with the issue for which permission had been granted: whether Peter Smith J’s order of 9 June 2005 was lawful and justified. It could not reopen the bankruptcy orders or other matters which had already been determined and whose challenges had expired (paras [19], [23]).
3. Canty had been given an ample opportunity to argue his case at the hearing on 26 May. The hearing lasted several hours and involved sustained discussion between Canty and the judge. The judge made clear that he rejected Canty’s principal contentions and that the adjournment was for the limited purposes of obtaining evidence about his mother’s health and obtaining a proper valuation of the property. He also explained that the property would probably have to be sold, subject only to the possible significance of medical evidence and available equity (paras [10]–[11], [24]).
4. It could therefore be no surprise that the judge proceeded to determine the substance of the appeal on 9 June. Canty had breached his undertaking by refusing access for the valuation, had not produced further medical evidence, and had chosen not to attend. The conditions for the adjournment had been removed by his own conduct. There was no denial of notice or a fair opportunity to be heard, and no other reasonable course was open to the judge (paras [12]–[18], [24]–[25]).
5. The allegation that the possession order had been obtained by fraud was unfounded. A report of an unspecified decision of Laddie J concerning rescission of a bankruptcy order had no bearing on the appeal. Canty had shown no ground for interfering with the order for possession or the related directions, and the appeal was dismissed.

1. Court of Appeal (Civil Division), [2006] EWCA Civ 194: appeal dismissed.
2. Chancery Division: Peter Smith J, on 9 June 2005, dismissed Canty’s appeal from the county court order, ordered delivery of possession of the property, and directed the trustee to consider recovery of pre-bankruptcy costs.
3. Cardiff County Court: HHJ Wyn Williams QC, on 16 June 2004, dismissed the Cantys’ applications and gave the trustee leave to enforce the possession order.
4. Permission to appeal: Arden LJ granted permission on 10 October 2005 on the issue of notice and opportunity to make representations at the resumed hearing.