Michael v The Official Receiver

For a second appeal, a properly arguable issue concerning the fairness of an earlier hearing can constitute a compelling reason for permission. The issue may concern predetermination or apparent bias. The permission decision does not determine the merits of the alleged unfairness.

Spencer Michael sought permission to appeal from Roth J’s order dated 31 July 2012. The order arose from his challenge to a Bankruptcy Restrictions Order made by Chief Registrar Baister on 13 December 2011. Roth J dismissed the unfair-hearing ground and another ground, but allowed the appeal against the order by shortening its duration by 18 months: [2013] EWHC 4286 (Ch).

Lewison LJ refused permission on the papers. On renewal, Michael challenged the conclusion that the hearing was fair, relying on alleged interruptions and his having been labelled dishonest. No transcript of the hearing was available. The central issue was whether the assumed facts disclosed a properly arguable case of predetermination or apparent bias, and therefore a compelling reason for a second appeal.

1. Permission granted. Rimer LJ treated the proposed challenge as a second appeal and applied the threshold in CPR Part 52.13.
2. Roth J had proceeded on the assumption that Michael suffered many interruptions and was told at least once that his answers in evidence were not regarded as honest. The absence of a transcript meant that Roth J could not determine whether those events had occurred. Michael argued that the assumed facts required consideration of a closed-mind or predetermination test, rather than only the apparent-bias test, and that apparent bias was also established.
3. Rimer LJ regarded Roth J’s observation that the Chief Registrar may have been unduly influenced by Michael’s conduct and the irritation it caused as particularly significant. That observation could amount to an inference of bias and made the fairness issue properly arguable.
4. A properly arguable challenge to the fairness of the hearing, based on either predetermination or apparent bias, supplied the compelling reason required for a second appeal. The ruling was confined to permission and did not determine the merits of the alleged unfairness.

1. Court of Appeal (Civil Division): Rimer LJ granted the renewed application for permission to appeal on 11 April 2014.
2. High Court of Justice, Chancery Division: Roth J dismissed the unfair-hearing ground and another ground, but allowed the appeal against the Bankruptcy Restrictions Order by reducing its duration by 18 months, in [2013] EWHC 4286 (Ch).
3. Chief Registrar: Chief Registrar Baister made the Bankruptcy Restrictions Order on 13 December 2011.