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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 >> Rottmann v Brittain [2008] EWCA Civ 1360 (12 November 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/1360.html Cite as: [2008] EWCA Civ 1360

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(HIS HONOUR JUDGE KAYE QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2008

Lord Justice Mummery:

1. This is a renewed application for permission to appeal and for an extension of time. The application is made by Mr Michael Rottmann in person and the decision which he wishes to appeal is that of HHJ Kaye QC on 20 May 2008 when he granted an application to suspend the public examination of Mr Rottmann, who is a bankrupt, but directed that the examination should continue as a private examination. That decision is recorded in the following order:

"The Application dated 8^th October 2007 made by the Official Receiver for the Public examination of the Applicant be suspended until further order upon condition that the Applicant do attend Court for a private examination to be conducted before a High Court Judge at a time to be fixed."

2. Following that order Mr Rottmann applied for and was granted by Lawrence Collins LJ a stay of the private examination pending the determination of his application for permission to appeal. The application for permission was dealt with by Lloyd LJ on 16 October 2008 on a paper application. He granted an extension of time but refused permission to appeal. He continued the stay pending any oral renewal of the application, and it is the oral renewal which has taken place today.
3. Lloyd LJ gave the following reasons for his order:

"It seems to me that the judge was entitled to consider that continuing the examination as a private examination would adequately protect Mr Rottmann's right not to incriminate himself as regards the German proceedings because of the control which the court will be able to exercise as regards the use of transcripts, any notes made during the hearing and any other material arising from it. Mr Rottmann does not give any reason for supposing that this will not be the case in his skeleton argument.

I grant an extension of time given the circumstances of the delay but I refuse permission to appeal. Mr Rottmann is entitled to renew the application at an oral hearing. For that reason the stay granted by Lawrence Collins LJ is continued until seven days after the service of this order on Mr Rottmann and thereafter if he requests an oral hearing until that hearing."

Mr Rottmann requested an oral hearing for his renewed application, and that is what has come before me today. In support of his application he has produced a written skeleton argument, and he has also summarised very concisely the points which he would wish to make on his appeal.

4. The background is that Mr Rottmann, who came to the United Kingdom from Germany in 1995 and was subsequently adjudicated bankrupt, is concerned about criminal proceedings against him in Germany. His particular concern is that he should have the right in his examination in the insolvency proceedings in this country not to incriminate himself and thereby prejudice any fair trial of criminal proceedings against him. He does not agree with what the judge has said about a private examination giving him adequate protection against dissemination of information which is obtained from him during a private examination. He has said that he wishes to challenge the compatibility of Insolvency Rule 6.175(6) of the 1986 Rules with the Human Rights Act and the right he has under that to a fair trial and to be protected from self-incrimination. That part of the Insolvency Rules provides under the heading "Procedure at Hearing":

"If criminal proceedings have been instituted against the bankrupt, and the court is of [the] opinion that the continuance of the hearing would be calculated to prejudice a fair trial of those proceedings, the hearing may be adjourned."

5. That gives the court a discretion. The difficulty which Mr Rottmann faces on this appeal is that he is seeking to appeal against the exercise of a discretion. In order to succeed on such an appeal he has to show this court that the discretion has been exercised in a way which is contrary to legal principle or is for some other reason plainly wrong. The discretion referred to in that part of the Insolvency Rules is the discretion of the judge at first instance. It is not for this court to exercise the discretion afresh, unless it is shown that there is an error of the kind that I have mentioned, an error which vitiates the lawful exercise of the discretion. Mr Rottmann says he has a point of principle here. It is based on Article 6 of the European Convention on Human Rights, and he says that that argument will support his submission that there is an incompatibility between the provisions of the United Kingdom's insolvency laws and his fundamental right not to incriminate himself.
6. I am not persuaded that the appeal has a real prospect of success. For that reason I am not granting permission to appeal. But, as I have explained to Mr Rottmann, I am persuaded that there is a point here which ought to be considered by the full court. It seems to me that this is a point that has not been considered before in any of the authorities and, notwithstanding the difficulties that there are in appealing against HHJ Kaye's exercise of his discretion, I think that this matter should go forward to an adjourned hearing of this application, with a direction that, if the full court is of the view that he should have permission to appeal, it should proceed immediately to decide the appeal. I mention that the course I am taking is no guarantee that Mr Rottmann will obtain permission to appeal and it is no guarantee that, if he obtains permission, he will succeed in the appeal, but I am completely satisfied that what he is entitled to is to have the consideration of his case by the full Court of Appeal.
7. So the order I make is that this application for permission is adjourned to the full court with a direction that if permission is granted the appeal will be immediately heard and I will also, as Mr Rottmann has reminded me, continue the stay pending the hearing of the appeal. I would direct, subject to any observations that Mr Rottmann has, that one day should be set aside for the hearing of this appeal. I would also direct that there be included in the constitution of the court at least one Lord Justice with experience of insolvency cases.

Order: Application adjourned