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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cullen v Whinhurst Investments Ltd [2002] EWCA Civ 825 (23 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/825.html Cite as: [2002] EWCA Civ 825

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(BANKRUPTCY COURT)
(MR JUSTICE PUMFREY)

		The Royal Courts of Justice The Strand London Thursday 23 May 2002

Thursday 23 May 2002

1. LORD JUSTICE CHADWICK: This is an application for permission to reinstate an application for permission to appeal from an order made by Pumfrey J on 4 May 2001. The application for permission to appeal was listed for hearing in this court on 7 December 2001. The circumstances in which that application came before the court are set out in a judgment which I delivered on that day. The first fifteen paragraphs of that judgment should be read with this judgment.
2. The applicant did not appear at the hearing on 7 December. She had a hospital appointment that afternoon. I am satisfied from the material which she has now put in front of me that it would not have been practicable for her to attend at court in the morning and get back to Camberley in time for her hospital appointment. In those circumstances, there was a proper reason for her non-attendance. She should have an opportunity to present her application in court, in person, if she wishes to do so.
3. This is an application for permission to bring a second appeal. On the last occasion that she was before me, I took the view that, on the material that was then available, there were really no grounds upon which it could be said that the requirements in section 55(1) of the Access to Justice Act 1999 were satisfied. I remained of that view when the application to reinstate was put before me on paper. The further material which Mrs Cullen has provided to me today suggests that there is a real possibility that the court could be persuaded that there is a compelling need to deal with this matter in this court.
4. This application is for permission to appeal against a refusal to annul a bankruptcy order made as long ago as March 1987. There are proceedings in the bankruptcy, presently under appeal in the Chancery Division of the High Court, in which the trustee in bankruptcy seeks a possession order against Mrs Cullen and her husband with a view to selling their home. The question whether that is a proper response in a situation where this bankruptcy has now been going on for some 15 years, and in which Scott J (as he then was) had sought to draw a line under it in 1987, seems to me likely to merit consideration in this court. Proceedings in this bankruptcy cannot be allowed to take the course which they do at the moment; with repeated applications of one kind or another in the county court, the High Court or to this Court.
5. What I propose to do is to adjourn the application for permission to appeal against the order made by Pumpfrey J in May 2001 (that is, application 2001/1900) to be heard in the third or fourth week of July before a court of two judges with a time estimate of three hours. I do that on the basis that, as Mrs Cullen tells me, she will then be represented by counsel without fee under arrangements which she has already made. The application is to be listed on notice to the trustee in bankruptcy and to the petitioning creditor. It is to be listed with appeal to follow if permission is granted.
6. It seems to me most desirable that, if this court is going to entertain an application on notice, the current appeal in the High Court against the possession order should be before this court at the same time. To that end, I direct that Mrs Cullen is to apply to the High Court in writing (with a transcript of this judgment) for an order under CPR 52.14 for the transfer of her appeal against the possession order from the High Court to this Court. I will make an order that she be provided with a transcript of this judgment at public expense, so that she can put it before the High Court with her application. The High Court will then have a foundation upon which to decide whether to make an order under CPR 52.14.
7. If no order under CPR 52.14 is made by 21 June 2002, Mrs Cullen is to apply to this court for an order under section 57 of the Access to Justice Act 1999.
8. I stay the further proceedings in this bankruptcy until the matter comes back to this court in July; and, for the avoidance of doubt, that stay is to include the enforcement of the existing possession order. The trustee in bankruptcy may apply to set aside that stay.
ORDER: Application for permission to appeal adjourned, to be heard on notice to the trustee in bankruptcy and the petitioning creditor in the third or fourth week of July before a two-judge court, with appeal to follow if permission is granted. Time estimate three hours. Stay granted. Other directions as set out in the judgment. Copy of the transcript of this judgment to be provided to the applicant at public expense. (Order not part of approved judgment)