Brian O'donnell & Mary Patricia O'donnell (Petitioners) v The Governor and Company of the Bank of Ireland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 06 March 2013 |
| Neutral Citation | [2013] EWHC 489 (Ch) |
| Date | 06 March 2013 |
| Court | Chancery Division |
| Docket Number | Case Nos: 1786 & 1794 of 2012 |
[2013] EWHC 489 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN BANKRUPTCY
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Newey
Case Nos: 1786 & 1794 of 2012
Mr Brian O'Donnell appeared in person
Mr Gabriel Moss QC and Mr Richard Fisher appeared on behalf of the Respondent
(As Approved)
On 21 December of last year, following a seven-day trial, I handed down a judgment by which I dismissed petitions that Mr Brian O'Donnell and his wife Dr Mary Patricia O'Donnell had presented on 27 March for bankruptcy orders to be made against them. I did so on the basis that the O'Donnells' "centre of main interests" (or "COMI") was in Ireland rather than England when the petitions were presented.
What are before me now are applications for the orders I made on 21 December to be reviewed. The O'Donnells contend that those orders should be set aside and that I should instead make bankruptcy orders.
The applications are made pursuant to section 375(1) of the Insolvency Act 1986. That empowers the Court to "review, rescind or vary" any order made by it in the exercise of its jurisdiction under the Second Group of Parts of the Act.
Useful guidance as to the principles to be applied when considering an application under section 375 is to be found in the judgment of Laddie J in Papanicola v Humphreys [2005] EWHC 335 (Ch), [2005] 2 All ER 418. At paragraph 25 of his judgment, Laddie J said this:
"It seems to me that a number of propositions can be formulated in relation to s 375…. (1) The section gives the court a wide discretion to review vary or rescind any order made in the exercise of the bankruptcy jurisdiction. (2) The onus is on the applicant to demonstrate the existence of circumstances which justify exercise of the discretion in his favour. (3) Those circumstances must be exceptional. (4) The circumstances relied on must involve a material difference to what was before the court which made the original order. In other words there must be something new to justify the overturning of the original order. (5) There is no limit to the factors which may be taken into account. They can include, for example, changes which have occurred since the making of the original order and significant facts which, although in existence at the time of the original order, were not brought to the court's attention at that time. (6) Where the new circumstances relied on consist of or include new evidence which could have been made available at the original hearing, that, and any explanation the applicant gives for the failure to produce it then or any lack of such explanation, are factors which can be taken into account in the exercise of the discretion".
Laddie J went on (in paragraph 26):
"The second and fourth of these propositions merit some expansion. Inherent in s 375 is the concept that something has changed so that it is appropriate for the court to reconsider its own earlier order. If there is no change in circumstances, the only way to challenge the order is by appeal. The court is not to review its order simply on the basis that the applicant wants to present essentially the same facts and the same arguments but more forcefully or attractively".
Papanicola v Humphreys has been cited in more than one subsequent case. In HM Revenue and Customs v Cassells [2008] EWHC 3180 (Ch), [2009] BPIR 284, Sir Andrew Morritt said (in paragraph 2) that he "would emphasise the point made in the second of the stated principles, … namely that the circumstance must be one which justifies the exercise of the statutory discretion in favour of the applicant". In Raguz v Scottish & Newcastle Ltd [2010] EWHC 1384 (Ch), [2010] BPIR 945, Proudman J stressed (at paragraph 51) that the jurisdiction "should only be exercised in an exceptional case, and only where there is something new which has occurred since the decision in question".
Mr Gabriel Moss QC, who appears for the Bank of Ireland with Mr Richard Fisher, said that he and Mr Fisher were unable to think of any case in which there had been a successful section 375 application following a full trial with cross-examination. Mr Moss did not submit, and it cannot be the case, that the fact that there has been such a trial represents an absolute bar to an application under section 375. In practice, however, it is, I think, likely to be harder to succeed under section 375 where (as in the present case) the order which the applicant wishes to have reviewed was made after a lengthy trial at which there was cross-examination and the applicant was represented by experienced lawyers. The circumstances must be exceptional for the Court to accede to any section 375 application. It must be particularly unusual for the circumstances to warrant an order under section 375 when there has been a trial such as took place in this case.
On this occasion, unlike at the trial, the O'Donnells have not instructed lawyers to represent them. Mr O'Donnell (who is himself, of course, a solicitor by profession) appears in person and also represents his wife.
The O'Donnells' case is essentially that an order under section 375 is warranted by new evidence. Mr and Dr O'Donnell have each made witness statements exhibiting documents which were not before me at the trial and which they say would or might have altered my conclusions.
Certain of the documents produced by the O'Donnells post-date not merely the presentation of the petitions, but my judgment. This category includes a document confirming that Mr O'Donnell submitted a tax return to HM Revenue and Customs on 29 January 2013 and a tenancy agreement that the O'Donnells have recently entered into in respect of a house in Kent. It includes too the printouts from the Irish Companies Registration Office that the O'Donnells have exhibited. Some of the printouts concern the striking off of four Irish companies in February of this year. The last printout relates to the registration of "Vico Capital" as a business name and states "Ceased", "Effective date: 01/04/2011". In the course, however, of submissions, Mr O'Donnell told me that these details were based on information that had been supplied to the Companies Registration Office since the judgment. They would not, therefore, have been available to anyone searching at the Companies Registration Office up to 27 March 2012, when the petitions were presented. The other documents in this category must be of no significance for similar reasons. None of them can...
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