Brittain v Haghighat & Anor

An appellate court may refuse an adjournment where an appeal has no realistic prospect of success and postponement would cause indefinite delay. An appellant must confine the appeal to grounds within the permission granted and identify an arguable error in the discretionary order under challenge. Matters for which permission to appeal was refused cannot be reopened indirectly. On a sale application made more than a year after appointment of a trustee in bankruptcy, Insolvency Act 1986, section 336(4) and (5), gives creditors’ interests priority unless exceptional circumstances exist. Such circumstances may justify deferred possession while arrangements are made for care and rehousing.

The trustee in bankruptcy sought an order for sale of the bankrupt’s home. A preliminary ownership issue had previously been determined against the bankrupt and his wife, and permission to appeal that ruling was refused. On 12 January 2009, the Chancery Division made an order for possession and sale, deferred for three years or until three months after the permanent departure of the couple’s severely disabled adult child.

Both respondents appealed. Their grounds challenged earlier hearings, procedural matters and a trust deed, rather than the principles governing the sale order. Both sought a further adjournment because of ill health and caring responsibilities. The central issues were whether the appeals should be adjourned and whether they disclosed any arguable basis for interfering with the discretionary order.

Lloyd LJ delivered the judgment of the court. Rix LJ agreed.

1. The applications for adjournment were refused. Although the court accepted that the appellants faced serious medical and caring difficulties, the appeals had no prospect of success. Further postponement could be indefinite and would distract from preparations needed to comply with the order, whose three-year period was due to expire in January 2012.
2. The appeals could not be used to reopen issues for which permission had been refused. The grounds and supporting documents dealt with the conduct and preparation of earlier hearings and the alleged 1995 trust deed. They did not challenge the terms of the 12 January 2009 order or the basis on which the judge had exercised his discretion. Permission had expressly excluded an appeal on the ownership issue.
3. The statutory context was the balancing exercise under section 336(4) and (5) of the Insolvency Act 1986. Where the application is made more than a year after the trustee’s appointment, creditors’ interests outweigh other considerations unless exceptional circumstances exist. The lower judge had identified exceptional circumstances in the continuous care required by the severely disabled adult child, considered the evidence, and balanced creditor recovery against the family’s welfare, rehousing and care arrangements.
4. The Court of Appeal found no arguable error in that careful exercise of discretion. The order for possession and sale, deferred for three years or until the specified earlier event, therefore stood. Both appeals were dismissed.

1. Court of Appeal (Civil Division) On 2 December 2010 the court refused both applications for adjournment and dismissed both appeals: [2010] EWCA Civ 1521.
2. Chancery Division On 12 January 2009 Mr George Bompas QC, sitting as a deputy judge, ordered possession and sale of the property, deferred for three years or until the specified earlier event. Earlier permission applications concerning the ownership ruling and the subsequent review were refused.