MBI International & Partners Inc

Permission to appeal may be granted where the proposed appeal has a real prospect of success or there is another compelling reason for it to be heard. A novel and difficult question of law, with potentially wide consequences for the insolvency community, may satisfy both considerations. Permission may be limited to the central issue where other grounds are unnecessary or premature. Costs of an amendment application may be reserved where the overall outcome is not yet sufficiently clear and the matter is closely connected with an ongoing trial.

Following an earlier judgment in the proceedings, the MBI Respondents sought permission to appeal. The principal proposed ground concerned whether the principle of witness immunity from suit applies to examinations under section 236 of the Insolvency Act 1986, and whether such an examination is a judicial proceeding for that purpose. A further ground concerned paragraph 55F of the amended pleading. The court also addressed the timing of permission on four additional pleading grounds and the costs of the amendment application.

1. The court applied CPR 52.6, under which permission to appeal may be granted only where the appeal has a real prospect of success or there is some other compelling reason for it to be heard.
2. Permission was granted on Ground 1. The issue whether a section 236 examination is a judicial proceeding for the purposes of witness immunity from suit was difficult and novel, and the existing authorities concerned different factual circumstances. Although the judge considered her conclusion correct on the authorities available, she could not exclude the possibility that the Court of Appeal would take a different view on the law. The potentially far-reaching impact on the insolvency community also constituted a matter of real public importance.
3. The permission order was confined to Ground 1. Permission on Ground 2, concerning paragraph 55F of the amended pleading, was refused because the issue was likely to be resolved when the Court of Appeal determined Ground 1 and did not require separate consideration.
4. Permission on Grounds 3 to 6, concerning pleading issues, was adjourned until the end of the trial. The judge did not determine the timing or expedition of any appeal, although she expressed the tentative view that it would be preferable for the appeal to be heard before the second half of the trial.
5. The costs of the amendment application were reserved until after the trial. The outcome was not sufficiently straightforward to identify an interim winner, additional costs had arisen from counsel’s inability to continue, and the application would ordinarily have been dealt with as part of the extant trial.

not stated in the judgment.