[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 >> Alty v Bargain Booze Ltd & Anor [2002] EWCA Civ 1051 (1 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1051.html Cite as: [2002] EWCA Civ 1051

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

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
(His Honour Judge Howarth)

		Royal Courts of Justice Strand London WC2 Monday, 1st July 2002

1. LORD JUSTICE ROBERT WALKER: This is an application by Mrs Elsie Alty, who has appeared in person, asking for permission to appeal and an extension of time. Mrs Alty wishes to appeal from an order of His Honour Judge Howarth made at Manchester on 17th August 2001. I must stress, for reasons which will appear, that this is the only application before this court. Judge Howarth dismissed her appeal from an order of deputy District Judge Threxton made in the Salford County Court on 31st May 2001, refusing to set aside a statutory demand. I must emphasize that it is the correctness of the statutory demand that is the only issue before me this morning.
2. The background in this matter is a threecornered business arrangement which, most unfortunately, became a threecornered dispute between Mr Roy Alty and Mrs Elsie Alty ("Mr and Mrs Alty senior"), their son Mr James Harry Alty and his wife Mrs Beverley Alty ("Mr and Mrs Alty junior") and two associated companies concerned with the franchising of retail sales of alcoholic and nonalcoholic drinks and convenience foods. Those companies are Bargain Booze Limited and Goodwins of Hanley Limited ("the franchisers").
3. Until 1998 Mr. and Mrs Alty senior ran a retail offlicence business from premises at 572 Liverpool Road, Lower Irlam in Greater Manchester. Unfortunately, Mr. Alty senior's health was deteriorating. The family decided that Mr. and Mrs Alty junior would take a lease of the premises and buy the goodwill, fixtures and fittings of the business for £95,000, payable by an initial lump sum and then by instalments. The weekly rent was to be £160. These arrangements were put in place by formal documents prepared by solicitors.
4. When they took over the business Mr. and Mrs Alty junior entered into contracts with the franchisers on terms that they were to purchase all their stock (apart from newspapers and magazines) exclusively from the franchisers. The terms of supply included retention of title clauses under which the stock supplied by the franchisers remained their property until it had been fully paid for. Mrs Alty senior has since challenged the existence of these clauses, and has said (in the alternative) that she did not know of them. But they were pleaded and proved in the county court proceedings.
5. Unfortunately, Mr. and Mrs Alty junior found their financial commitments impossible to keep up with. In December 2000, after struggling for some months, they had to suspend payments of the instalments of the purchase price to Mr. and Mrs Alty senior, although Mr Alty junior has said they always paid the rent. Then on 13th January 2001 Mr Alty junior had a telephone call from his father to say that Mr. and Mrs Alty senior had (in the son's words) "taken over possession of the property [that is, the offlicence] and intended to assume responsibility for the stock situated in the property. They had that morning, as the shop assistant was opening the shop, attended at the property and relieved the shop assistant of her keys and informed her that they were taking over conduct of the business from the property." Mr. Alty junior has since sought to retract a large part of the witness statement in which this passage occurs, but he has not gone back on that particular part of his evidence.
6. Predictably, this action led to trouble with the franchisers. They were, on their case, owed well over £40,000 by Mr. and Mrs Alty junior and stock worth over £20,000 was on the premises. On the same day, 13th January 2001, there was a meeting, which seems to have become something of a stand off, between Mr and Mrs Alty senior, Mr Alty junior and Mr. Robert Mayor of the franchisers. Mr Mayor wished to remove the stock at once in a van. Mrs Alty senior refused to permit him to do so.
7. The outcome was that the franchisers sued Mr. and Mrs Alty senior in the Crewe County Court. The defendants put in separate defences. On 24th January 2001 there was an interim order for delivery up of the then unsold stock. On 9th March 2001 there was a further order of Mr Recorder Goldstone QC made by consent, although Mrs Alty senior was surprised this morning to be told that, for payment by Mr and Mrs Alty senior of £7,546 odd payable at the rate of £400 per month, the first payment to be made on 1st April 2001. The costs were assessed at £7,000 to be paid by similar instalments. The order provided in paragraph 3 that, in default of any payment, there should be permission to enforce the judgment debt and costs for any outstanding balance.
8. The first instalment was not paid on 1st April 2001. Mrs Alty senior has explained that this was because she and her husband were on holiday with their daughter and their grandchildren. She forgot to ask her assistant to put funds into the account and post the cheque. The franchisers acted very quickly and issued a statutory demand on 3rd April, although it was not served (by personal service) until 23rd April.
9. Mrs Alty applied under rule 6.5 of the Insolvency Rules 1986 to set aside the demand. The grounds of the application were that the debt was her responsibility, not that of her husband (and that point does her credit), and that a cheque had been sent on 24th April 2001.
10. The deputy District Judge could see no grounds for setting aside the statutory demand. Nor could Judge Howarth. He noted that no attempt had been made to set aside the original consent order and, in view of that, Mr. Alty junior's alteration in his evidence is of little relevance so long as that order stands. Judge Howarth referred to rule 6.5(4)(d) which says "... the court is satisfied, on other grounds, that the demand ought to be set aside." That did not, he said, give the court any general discretion to set aside a statutory demand merely because it felt that a creditor had acted rather speedily. The judge reminded himself of section 271 of the Insolvency Act 1986. He advised Mr and Mrs Alty senior to attempt to establish a dialogue with the franchisers in order to avoid further costs.
11. What has happened since then is that a bankruptcy petition against Mrs Alty senior was presented on 11th September 2001. It was to be heard on 16th November 2001. Mrs Alty senior was unable to tell me what has happened about that petition, although she is confident that she has not yet been made bankrupt. I have urged her and her husband to seek advice in the matter from a Citizens Advice Bureau if they cannot afford a solicitor because they own the offlicence and the flat over it, subject to a mortgage, and it would be a very serious matter if that were to fall into the hands of a trustee in bankruptcy. Mrs Alty senior did tell me that the franchisers, or one of them, have proceeded against her son who was, on the franchisers' case, liable to them for substantial indebtedness, in addition to the value of the unsold stock.
12. The position this morning is that I am asked to grant permission to appeal only for a further appeal from the order of Judge Howarth. It would be a second appeal. By section 55 of the Access to Justice Act 1999 I have no power to grant permission for a further appeal unless a further appeal would raise an important point of principle or practice, or for some other compelling reason. As I have tried to explain to Mrs Alty senior, I do not have before me any application to appeal from the order of Mr. Recorder Goldstone, and it is that order which lies at the heart of the difficulties facing Mr. and Mrs Alty senior. I cannot therefore grant permission to appeal on the application which is made to me. If Mr. and Mrs Alty senior wish to pursue an application for permission to appeal from the order of the Recorder they must seek advice about that. It would be unrealistic for me to suggest that it would be easy for them, after a lapse of more than two years, to bring any appeal against that order at this stage. I must therefore dismiss the application.
Order: Application refused.