Crammer v West Bromwich Building Society & Ors

The Court of Appeal refused permission to appeal a renewed application for extension of time and permission to appeal against the dismissal of an application to annul or rescind a bankruptcy order. The court applied established principles under s.282(1)(a) and s.375(1) of the Insolvency Act 1986: an annulment or review will only normally be allowed where there is material existing at the time of the bankruptcy order which was not previously adjudicated, or where there has been a material change of circumstances. Points which have already been decided in the bankruptcy proceedings will not be re‑litigated except in exceptional circumstances. Article 6 of the European Convention on Human Rights did not assist because the statutory appeal process provides the appropriate remedy for procedural complaints. The application was dismissed for lack of new material, undue delay and because the substantive points (appropriation of recoveries, limitation and the status of the IVA) had already been considered and rejected in the earlier proceedings.

This is a renewed application by Dr Yehuda Crammer for an extension of time and permission to appeal against the dismissal of his application to annul or rescind a bankruptcy order made on 28 January 2004 by Lloyd J. The underlying dispute arose from a mortgage secured by a charge over 34 Sedgley Park Road, Manchester, a subsequent possession and sale of the property, and a later recovery of about 300,000 from proceedings against surveyors that was credited to the mortgage account. There was also an earlier individual voluntary arrangement (IVA) and contested issues about limitation and appropriation of the recovery.

The nature of the application:

• Dr Crammer sought an extension of time and permission to appeal the refusal to annul or rescind the bankruptcy order.

Issues framed:

• whether the petitioning creditor remained bound by the IVA;
• whether the Society had appropriately credited the 300,000 against capital rather than interest;
• whether limitation barred recovery of capital;
• alleged procedural unfairness at the hearing (including complaints about adjournment and disclosure);
• whether the Article 6 Convention rights were engaged.

Court's reasoning and conclusion:

• The court reviewed established authority (including Turner v Royal Bank of Scotland and Owo-Samson v Barclays Bank plc) and held the proper role of s.282(1)(a) and s.375(1) applications is to consider matters not previously adjudicated or material changes of circumstance; re‑litigation of issues already decided will not normally be permitted.
• The court found that the principal grounds relied on by Dr Crammer (the IVA, appropriation and limitation) had already been considered and rejected in the bankruptcy proceedings and in earlier applications for permission to appeal; accordingly they could not be re‑opened on this application except in exceptional circumstances, which were not shown.
• Article 6 did not provide a basis to reopen concluded issues because the appellate process was available to address procedural complaints.
• Finally, the judge below had also permissibly taken into account delay and the absence of evidence about the present state of the bankruptcy when refusing to exercise his discretion to annul or review the order.

Result: permission to appeal was refused and the renewed application dismissed.

Appeal dismissed. The Court refused permission to appeal because the points advanced were either already decided in the bankruptcy proceedings or were not new material for the purposes of s.282(1)(a) or s.375(1) of the Insolvency Act 1986; Article 6 did not provide a basis to reopen those decisions; the judge properly exercised his discretion in light of delay and absence of fresh evidence.

The appeal was from HHJ Hodge QC's dismissal (High Court, Liverpool District Registry, Chancery Division). The bankruptcy order was made by Lloyd J on 28 January 2004. Earlier decisions in the proceedings included Neuberger J allowing the Society leave to present a petition (23 October 2002); refusals of permission to appeal by the Master of the Rolls, by Jacob LJ (29 April 2005) and by Chadwick LJ and Etherton J (27 July 2005). HHJ Hodge QC dismissed Dr Crammer's application on 22 March 2010, and the Master of the Rolls refused permission on the papers; this Court (Patten LJ and Rimer LJ) refused permission on 25 April 2012 ([2012] EWCA Civ 517).