Oyesanya v Jackson

An appeal is ordinarily a review of the lower court’s decision. An appellate court should distinguish errors of law, findings of fact, evaluative judgments and exercises of discretion. A case-management decision to refuse an adjournment will not lightly be disturbed. Medical evidence relied upon to establish inability to participate should identify the condition, explain its effect on participation, provide a reasoned prognosis and be based on proper examination. A trustee in bankruptcy’s power to realise property vested in the bankrupt estate is governed by the Insolvency Act 1986, rather than the balancing provisions applicable to co-owners under the Trusts of Land and Appointment of Trustees Act 1996. Speculative recovery from other assets does not necessarily require postponement of realisation of an available property asset. Article 6 does not provide a defence to possession and sale of property vested in a trustee in bankruptcy.

The applicant appealed from District Judge Khan’s refusal to extend time for medical evidence, refusal to adjourn a possession hearing, and orders for possession and sale of his residential property. The property had vested in the respondent, his trustee in bankruptcy. The applicant argued that medical incapacity, a possible undervalue sale of another property, excessive trustee costs, alleged payment of creditors and article 6 required the possession order to be postponed or set aside.

The appeal was heard as a rolled-up application for permission to appeal, with the substantive appeal to follow immediately if permission were granted. The central issues were whether the district judge had erred in applying the procedural rules, assessing the medical evidence and exercising case-management discretion, and whether the statutory insolvency regime required the property sale to be deferred.

1. Outcome. Permission to appeal was refused. In any event, the appeals would fail. The stay of the possession order and suspension of the warrant were lifted.
2. Appellate approach. Under CPR rule 52.21, the appeal was a review, not a rehearing. The court distinguished primary factual findings, evaluative judgments and discretionary decisions. The district judge had given adequate reasons, which were to be read on the assumption that he understood his judicial functions and the matters requiring consideration.
3. Medical evidence and adjournment. The district judge correctly applied the relief-from-sanctions criteria to the late medical evidence. The failure was serious and significant, lacked a good explanation and did not justify relief. The refusal of an adjournment was a case-management decision. The applicant bore the burden of showing that an adjournment was appropriate. The judge was entitled to consider the medical material, the history of non-compliance and his own observations of the applicant’s demeanour and ability to participate, provided he did not treat those observations as expert evidence.
4. Possession and sale. The property was vested absolutely in the trustee, subject to the statutory insolvency scheme. It was not held on a trust of land, so the balancing exercise under the Trusts of Land and Appointment of Trustees Act 1996 and section 335A of the Insolvency Act 1986 had no application. The court could prefer realisation of the property, whose value and sale costs were relatively certain, to speculative litigation concerning another property. Any challenge to excessive remuneration or expenses had to be made under rule 18.35 of the Insolvency (England and Wales) Rules 2016, which had not been invoked.
5. Article 6 and fresh evidence. The applicant had a reasonable opportunity to present his case, including with legal assistance or a McKenzie friend. Article 6 therefore supplied no basis for relief. Fresh evidence was neither identified nor the subject of an admission application under CPR rule 52.21(2).

• High Court (Chancery Division): Permission to appeal refused and, alternatively, the appeal dismissed. The possession order and warrant could be enforced.
• County Court at Manchester: District Judge Khan refused an extension of time for medical evidence and an adjournment, and ordered possession and sale of the property on 4 February 2019.