Yankah v Pick

An unappealed bankruptcy or possession order cannot be reopened indirectly through a later application for a stay or an extension of time. Permission to appeal should be refused where the proposed appeal has no real prospect of success. In exercising discretion over execution, the court must balance family hardship, including the children’s needs, against the trustee’s interests. In these circumstances, the children’s interests were not automatically paramount. Delay and the uncertain timing of a proposed mortgage-rescue arrangement supported allowing the trustee to proceed. Commercial decisions about whether and how to sell the property remain matters for the trustee.

Mrs Yankah applied for permission to appeal against HHJ Plumstead’s dismissal, on 19 October 2009, of her application for a stay of execution or a temporary extension of time to pursue assistance under the government mortgage-rescue scheme.

Her former husband had been made bankrupt in 2006. An earlier order had upheld the bankruptcy, ordered sale of the matrimonial home and required possession. No appeal had been brought against that order. Mrs Yankah argued that the bankruptcy was unjustified because there was sufficient equity in the property, and relied on the proposed rescue scheme and the needs of the children living at the property. The central issue was whether those matters gave the proposed appeal a real prospect of success.

1. Permission refused. The application had no real prospect of success. The underlying application concerned the exercise of the judge’s discretion, and the judge had approached the matter sympathetically.

2. The validity of the earlier bankruptcy order was not in issue on this application. No appeal had been brought against it, and the applicant had to accept the order as it stood. The same applied to the order for sale and possession.

3. The proposed mortgage-rescue scheme would not be functioning within the next few months, and any approval process would take several months. That uncertainty did not justify keeping the trustee waiting indefinitely, particularly as approximately 17 months had passed since the possession order.

4. The interests of the children were not paramount in the circumstances. The court had to balance the interests of the family against those of the trustees. On the facts, the trustee’s interests prevailed.

5. In a postscript, Ward LJ observed that the trustee could consider whether a vacant sale would produce a better result than a sale with the applicant in occupation or through the rescue scheme. Those were commercial questions for the trustee’s judgment, not the court’s.

The application was refused. A transcript was directed to be provided at public expense.

• Principal Registry, Family Division: HHJ Plumstead dismissed the application for a stay of execution or a temporary extension of time on 19 October 2009.
• Court of Appeal (Civil Division): Ward LJ refused permission to appeal and ordered that the transcript be provided at public expense: [2010] EWCA Civ 663.