Rottmann v Brittain

On an appeal from the exercise of a judicial discretion, permission requires a realistic prospect of showing that the discretion was exercised contrary to legal principle or was otherwise plainly wrong. The appellate court does not rehear the discretionary application or substitute its own view unless such an error is shown. A novel argument concerning the compatibility of insolvency examination procedures with the privilege against self-incrimination and the fair-trial guarantee may nevertheless justify consideration by the full Court of Appeal, even where the prospects of the appeal are not yet accepted as real.

The appellant, a bankrupt facing criminal proceedings in Germany, sought permission to appeal out of time from an order of the Chancery Division. The judge had suspended his public examination but directed that he attend a private examination. A stay of that private examination was continued pending the renewed oral application.

The appellant relied on Insolvency Rules 1986, rule 6.175(6), and Article 6 of the European Convention on Human Rights. He argued that a private examination did not adequately protect him against self-incrimination and dissemination of material relevant to the German proceedings. The issue before the Court of Appeal was whether permission should be granted and whether the novel compatibility point should be considered by the full court.

1. Application adjourned. The renewed application for permission to appeal was adjourned to the full Court of Appeal. The stay was continued pending the hearing.

2. Lord Justice Mummery held that the order under challenge involved the exercise of the discretion conferred by rule 6.175(6) of the Insolvency Rules 1986, permitting an adjournment where continuation of the hearing might prejudice a fair criminal trial. An appeal against such an exercise of discretion requires the applicant to show that the discretion was exercised contrary to legal principle or was otherwise plainly wrong. The appellate court does not exercise the discretion afresh unless an error of that kind is established.

3. The appellant’s Article 6 argument, including the asserted right not to incriminate himself, did not persuade the judge that the proposed appeal had a real prospect of success. Permission was therefore not granted at that hearing.

4. Nevertheless, the compatibility point had not previously been considered in the authorities and was suitable for consideration by the full court. The adjournment did not guarantee that permission would be granted or that the appeal would succeed. The full court was directed to hear the appeal immediately if permission were granted, with one day set aside and at least one Lord Justice experienced in insolvency cases included in the constitution.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1360, the renewed application was adjourned to the full court and the stay was continued.
• Court of Appeal (Civil Division): Lloyd LJ extended time but refused permission on paper on 16 October 2008, continuing the stay pending an oral renewal.
• High Court, Chancery Division: HHJ Kaye QC ordered on 20 May 2008 that the public examination be suspended, subject to attendance at a private examination.