Bank of Ireland v Gill

When deciding whether to extend the time for an application under CPR 3.12(a), the court may use the checklist in CPR 3.9 as relevant guidance. It must assess the circumstances in the round, including promptness, explanation, responsibility for default, compliance with orders, prejudice, and the interests of the administration of justice. A stay concerning bankruptcy proceedings should be approached cautiously because bankruptcy is a collective remedy and creditor interests require protection. The court may lift a stay where the underlying appeal appears weak and the issues can be considered by the Bankruptcy Court, which retains power to stay or adjourn the bankruptcy proceedings if necessary.

The Governor of the Bank of Ireland sought to set aside a stay imposed on an order of District Judge Mullis. The stay concerned proceedings arising from a statutory demand and an outstanding appeal. The court considered whether the application to set aside the stay had been made within seven days and, alternatively, whether time should be extended under CPR 3.12(a).

The court also considered the effect of attempts to serve an earlier bankruptcy petition, the prejudice to Mr Gill and creditors, the apparent merits of the appeal, and whether lifting the stay would undermine the appeal. The central issues were whether time should be extended and whether the stay should remain in place.

1. Time for applying to set aside the stay. The application was made in time. On the balance of probabilities, the order had probably been sent by second-class post and was not received by the solicitor until 6 March 2013.
2. Alternative extension of time. If the application had been out of time, the court would have exercised its discretion under CPR 3.12(a) to extend time. The checklist in CPR 3.9 was relevant. The court considered the administration of justice, promptness, the absence of deliberate default, the explanation, responsibility for the failure, compliance with other orders, and the competing prejudice to Mr Gill and creditors. The application had been dealt with promptly once the order came to the solicitor’s attention.
3. Conduct concerning the bankruptcy petition. Although serving a bankruptcy petition already presented was not necessarily within the four corners of the stay, continuing attempts to serve it were contrary to the spirit of the stay and should have ceased.
4. Whether the stay should be lifted. The court treated the appeal as relatively weak. Bankruptcy is a collective remedy and the insolvency regime protects creditors pending determination. The Bankruptcy Court could consider the issues raised and could stay or adjourn the bankruptcy proceedings to avoid undermining the appeal. The possibility that lifting the stay might affect dispositions under s.284 of the Insolvency Act also supported resolving the position without leaving the stay in place.
5. The stay imposed in February 2013 was set aside.

The judgment does not describe a prior appellate decision. It concerned an application to set aside a stay imposed by Mrs Justice Asplin on paper on 27 February 2013, relating to an order of District Judge Mullis dated 24 January 2013.