[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Byatt v Browne [2001] EWCA Civ 2070 (17 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2070.html Cite as: [2001] EWCA Civ 2070

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(HIS HONOUR JUDGE BEHRENS, Sitting as a Deputy Judge of the High Court)

		Royal Courts of Justice Strand London WC2 Monday, 17th December 2001

Monday, 17th December 2001

1. LADY JUSTICE ARDEN: This is an application by Mr Alfred Browne for permission to appeal against the order of His Honour Judge Behrens, sitting as a Deputy Judge of the High Court of Justice, Chancery Division, whereby the judge struck out an application dated 21st November 2000. By this application the applicant sought to set aside various orders made in the county court; namely an order of District Judge Bomkin, dated 19th January 1998, an order of His Honour Judge Farnworth siting in the Hitching County Court in Bankruptcy, dated 6th May 1998 and an order of His Honour Judge Farnworth sitting in the Hitchin County Court in Bankruptcy dated 6th January 1999.
2. Mr Browne appears in person on this application. Mrs Browne accompanies him, although she has told me she has to take medication for arthritis. They are both senior citizens, and I direct that a copy of the transcript of this judgment be sent to them at public expense. I hope that will assist them so that they will not have to take a detailed note of this order. Both Mr and Mrs Browne had made submissions to me and I am grateful to them.
3. I now turn to the judgment of His Honour Judge Behrens. The judge explained the background to his order in his judgment. He read from the application before him, which was an application to discharge earlier orders of the bankruptcy court on the grounds that they constituted a miscarriage of justice and that the case was fraudulent. At the hearing before the judge the applicants, Mr and Mrs Browne, sought an adjournment for 28 days. That application was, however, opposed by the trustee's solicitors, Mr Nicholls, on the basis that the application was in any event bound to fail and that there was no point in adjourning it. The judge acceded to this application and so accordingly there was no adjournment.
4. Mrs Browne has submitted to me that the judge should have adjourned the case so that they could obtain legal representation. The judge explained that they had had a lawyer but he was not able to represent them because of the absence of legal aid, and so Mr and Mrs Browne wanted to instruct another lawyer to represent them. The judge decided to proceed in a wholly exceptional situation, namely that it was submitted to him that the order was bound to fail. The judge heard submissions on that point from Mr Browne (and it may be also from Mrs Browne) but decided in the end to refuse the adjournment and to make the order sought.
5. The judge set out the background to the earlier orders. On 31st July 1962 the applicant bought a property, namely 84 West Wickham Road, High Wycombe. On 18th July 1985 judgment was given against the applicant in a boundary dispute between himself, a Mr and Mrs Bailey and a company called Stag Properties. An order was made against him for costs. On 13th May 1986 a charging order nisi was obtained against the property. On 9th July 1986, however, Mr Browne transferred his interest in the property to three of his children for the sum of £3,000, which it is said has not been paid. On 13th July 1987 Mr Browne was adjudicated bankrupt. In 1989 his trustee in bankruptcy brought an application to set aside the transfer of the property as being at an undervalue.
6. It will be apparent that those events all occurred a very long time ago, and of course Mr Browne has long since obtained his discharge from bankruptcy. However, the rights of his creditors as at the commencement of the bankruptcy would not be affected by that discharge in relation to the property held at the moment of bankruptcy.
7. Negotiations took place between the Browne children and the trustee in bankruptcy. However, these negotiations came to nothing, and in September 1997 the trustee gave notice of his intention to proceed with the application. In January 1998 District Judge Bomkin made an order that the applicant and his children serve evidence within 14 days. No evidence was filed. The matter came before His Honour Judge Farnworth on 12th May 1998 when the judge made an order that the trustee was entitled to the whole of the property and that the transfer had indeed been a transfer at an undervalue.
8. In July 1998 Mrs Browne applied to set aside the orders which had been made in May 1998 and also the order that had been made in January 1998. The matter came before His Honour Judge Farnworth on 6th January 1999. The judge decided that his original order should be set aside on terms as to costs and that Mrs Browne had a half share in the property, and all the costs of the proceedings should be charged on that half share.
9. Mr and Mrs Browne then appealed those orders to the High Court under section 375 of the Insolvency Act 1986. The matter came before Mr Peter Leaver QC, sitting as a Deputy Judge of the High Court of Justice, Chancery Division. On 9th May 1999 Mr Leaver QC dismissed the appeal and affirmed the order made by His Honour Judge Farnworth made on 12th May 1998 and as varied on 6th January 1999.
10. I have not seen the order of Mr Peter Leaver QC, or his judgment, and it is not in the bundles before me. For completeness I have asked for inquires to be made in the Bankruptcy Court today. I am very grateful to the court's officers for making urgent efforts to find the order and judgment. Unfortunately those efforts have not been successful as it appears that the papers have all been returned to Aylesbury. The only information I have about those proceedings, therefore, is in the judgment of the judge. The judge says at page 4:

"Mr and Mrs Browne, as I understand it, were not satisfied with those orders because they submitted an appeal to the High Court as they were entitled to do under Section 375 of the Insolvency Act. That application or the appeal came before Mr Peter Leaver QC, sitting as a Deputy Judge of the High Court, exactly the same status as myself, on Tuesday 9th March 1999. The order, which is in the files before me, was that the order of His Honour Judge Farnworth be affirmed. So the position at that stage had been reached that there was a decision as to the interests in the property made by His Honour Judge Farnworth, originally made on 12th May 1998, subsequently varied on 6th January 1999, was affirmed by Mr Peter Leaver QC, sitting as a High Court Judge on 9th March 1999."

11. The judge in that passage describes the application as one made by Mr and Mrs Browne by way of an appeal. He also says that the order was in the files before him. In those circumstances it seems to me proper that I should proceed with this application, even though I have not myself seen that order. The judgment under appeal is of course that of Judge Behrens.
12. After the order was made by Mr Peter Leaver QC, Mr Browne applied for a review of his bankruptcy. That application was dismissed. Orders were made for the delivery up of the title deeds relating to the property both by District Judge Hickman and by His Honour Judge Farnworth. However, I understand those orders have not yet been complied with. Judge Behrens held that, as the orders subject to the application to him had already been appealed to the High Court he had no jurisdiction to deal with the appeal. Accordingly, as the application to him was bound to fail, he struck out the application.
13. It will be apparent from that summary that the judge never considered the merits of an appeal against the orders made by His Honour Judge Farnworth. Mr Browne has made submissions to me today that His Honour Judge Farnworth was mistaken in the order he originally made, and that his order should be set aside on appeal. Mr Browne informs me that he is concerned that claims were made to the property so long after the start of the bankruptcy, and moreover he says that His Honour Judge Farnworth did not have all the facts, and that he, Mr Browne , now has some new evidence that he would want to place before the court and some new documents which were not considered by His Honour Judge Farnworth.
14. I hope that Mr Browne will understand when I say that I am not on this application concerned with the merits of his appeal because Judge Behrens was never called upon to consider those merits. I am only concerned with the technical issue as to whether the judge was right in the conclusion he reached about the question whether the appeal could be made to him, sitting as a Deputy Judge of the Chancery Division.
15. I can understand how it came about that Mr Browne made his application to the judge, because he understood from the earlier hearing before Mr Leaver that there was possibly some deficiency in the powers of a deputy judge, but a deputy judge has all the powers of a full judge of the High Court, Chancery Division, he is simply called a deputy judge because he does not have a full-time appointment. So the powers of Mr Leaver were the same as that of any other High Court Judge in dealing with the application, likewise the powers of His Honour Judge Behrens were the same as a High Court Judge, both were sitting as a High Court Judge and they were both judges on exactly the same level in the judicial hierarchy.
16. The essential issue before the judge, therefore, was simply the technical issue whether he could set aside the orders made on 9th May 1998 and 6th January 1999. Those orders had already been the subject of an appeal to the High Court, and therefore there could be no further appeal to the High Court. The decision of the judge, as I see it, was inevitable, and there is no prospect of success in arguing to the contrary on a further appeal to this court.
17. So far as the question of an adjournment is concerned it is exceptional not to grant an adjournment for legal representation, but the judge was faced with the situation where, even if there was legal representation, in his view firmly reached, the application was bound to fail. In my judgment he was right about this, and therefore I cannot give permission for a further appeal to this court against the order of Judge Behrens.
18. The only avenue open to the applicants is to seek to appeal out of time to this court against the order of Mr Leaver QC. I do not hold out any prospect of success but if Mr Browne wanted to take the matter further, that, as I see it, was the avenue he should have taken. As I say I fully understand why the applicants took the course they did; however, I cannot treat this application as an application to appeal against the order of Mr Peter Leaver QC because the relevant documents are not before me.
19. Moreover, this appeal is what we call a second appeal, namely there has been an appeal already from Judge Farnworth to the High Court, and an appeal to this court would be a second appeal. Civil Procedure Rule 52.13 provides that there are further conditions which have to be satisfied in the case of a second appeal, namely that there should be some important point of principle or practice or some other compelling reason for an appeal. So far as this application is concerned, because there is no prospect of success, those conditions cannot be satisfied. But these conditions would also have to be satisfied if there was an appeal out of time against the order of Mr Peter Leaver QC.
20. I should make some observations about Mrs Browne's concerns. Both Mr Browne and Mrs Browne have pointed out this matter has been subject to very considerable delay. Mrs Browne is particularly concerned because now that she is retired she wants to have a home to enjoy with her children and grandchildren. But I would say that nothing in Judge Behrens' order affects her own interest in the house. Mr Browne tells me that he and Mrs Browne are now living in London and that the house is boarded up and has not been sold. This may be because the title deeds have not yet been handed over, but, if I may be permitted to make this observation, having the house boarded up is surely doing no one any good. One possibility is that there could be a negotiated solution between the trustee and Mr and Mrs Browne. I expect that every avenue has been tried in this case but I would like to remind Mr and Mrs Browne that there are agencies which might assist in resolving this dispute by negotiation with the trustee. I appreciate that is not all that they want, but it would perhaps help them bring this matter to a conclusion and I hope very much that that can happen.
(Application refused; no order for costs; transcript to be supplied to the applicants at public expense).