Raiffeisenlandesbank Oberösterreich AG v Meyden

An appellate court should not permit a respondent to advance an alternative ground for upholding the decision below without the required respondent’s notice, unless the procedural default is addressed under the applicable relief-from-sanctions principles.

Where advancing the point would require investigation of disputed facts, the appeal court must have a fair evidential basis for doing so. It is generally inappropriate to reverse factual findings without the transcript of relevant oral evidence, particularly where the lower court heard and assessed the witness.

The Austrian bank appealed against Deputy Registrar Lawson’s refusal to annul Mr Meyden’s bankruptcy. The Registrar considered it unlikely that, on the evidence before him, Mr Meyden’s centre of main interests was in England and Wales, but declined to annul the bankruptcy in the exercise of his discretion.

Mr Meyden sought to argue on the appeal that his centre of main interests was in England and Wales. That argument had not been advanced through a respondent’s notice and depended on additional evidence and a transcript of his cross-examination before the Registrar. The central issues were whether the point could be raised and whether the appeal court could fairly determine the factual question.

1. The appeal was confined to the grounds advanced by the appellant. Mr Meyden could not effectively introduce an alternative ground for upholding the Registrar’s decision without a respondent’s notice. Salford Estates (No.2) Ltd v Altomart Ltd [2014] EWCA Civ 1408 established the purpose of the respondent’s notice and the implicit sanction for failing to file one. Any application for relief was subject to the applicable Mitchell and Denton principles.

2. Permitting the centre-of-main-interests argument would open a disputed factual inquiry concerning Mr Meyden’s position in 2010. The appeal court could not fairly conduct that inquiry without the transcript of the oral evidence given before the Registrar.

3. An appellate court is at a permanent disadvantage in assessing factual issues compared with the judge who saw and heard the witnesses. Although a transcript may sometimes show that factual findings cannot stand, it would be inappropriate to reverse such findings without even having the transcript.

4. The omission of the respondent’s notice and the absence of the transcript caused serious and substantial prejudice to the appellant. In light of Mr Meyden’s unwillingness or inability to fund an adjournment, the implicit application to raise the factual point was refused. The supplied judgment does not state the final formal order on the appellant’s substantive appeal.

1. High Court (Chancery Division): heard an appeal from Deputy Registrar Lawson’s decision refusing to annul the respondent’s bankruptcy.

2. Deputy Registrar Lawson: concluded that it was unlikely that the respondent’s centre of main interests was in England and Wales, but declined to annul the bankruptcy in the exercise of his discretion.