Debtor (No. 12 of 1970), Re A
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 26 May 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0526-1 |
| Date | 26 May 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0526-1
In The Court of Appeal
(Appeal from the High Court of Justice, Chancery Division. In Bankrupcy.)
Lord Justice Russell,
Lord Justice Megaw, and
Lord Justice Cairns.
THE DEBTOR appeared in person.
MR. CHRISTOPHER BATHURST (instructed by the Solicitor for the Official Receiver) appeared for the Respondent.
The judgment I am about to read is the judgment of the Court. This is on appeal from the decision of the Divisional Court in Bankruptcy which set aside a decision of the Registrar of the Hertford County Court made under Section 108(1) of the Act rescinding the receiving order and putting an end to the bankruptcy by dismissing the petition on which the receiving order was founded. At the conclusion of the hearing (at which the debtor appeared in person and the Official Receiver was represented by counsel) we did not doubt that the appeal should be dismissed, and so stated; but because it was said that there appeared to be some uncertainty in the country on the proper scope of the exercise of the judicial discretion under the Section to review and rescind a receiving order we took time to consider the language in which to express our views.
In one sense the case is somewhat unusual. The debtor is a solicitor who had been by no means unsuccessful in his profession, and with, so far as we are aware, a good standing and unblemished reputation. No doubt in common with many professional men he incurred liabilities, in particular to the Revenue authorities and by way of bank overdraft, but had been always able to arrive at satisfactory accommodations. However he was concerned for a client, a prominent Scotsman, in an internal company dispute, the sort of dispute that leads to circulars and charges and counter-charges. On behalf of this client he published a document (that he told us was approved by counsel) and he and his client were sued for damages for libel by the petitioning creditor. When we say he told us, we do notintend to throw doubt, but only to indicate something not proved in evidence. Judgment was obtained against him and his client for some £10,000 including costs. Unfortunately, shortly before the libel the debtor and his partner had decided no longer to insure against libel. The plaintiff pursued his claim against the debtor for the whole. He served a bankruptcy notice for £9,659, the balance of the judgment. This was not complied with: a petition followed and the receiving order thereon was made on 4th May, 1970. The debtor accepted that, the receiving order was properly made.
After attempts to obtain a longer stay of advertisement, the receiving order was advertised in early June 1970, an amended statement of affairs was sworn on 6th July, and at the first meeting of creditors on 21st July it was resolved that the Official Receiver apply for an order of adjudication and that a named chartered accountant be appointed trustee. On 10th August the debtor applied for rescission of the receiving order and on 14th September rescission was ordered and the bankruptcy terminated. There has been no formal examination of the debtor, though there is no suggestion that he had not co-operated fully with the Official Receiver. The Official Receiver appealed and the Divisional Court on 13th November allowed the appeal, giving leave to the debtor to appeal to this Court.
On the morning of 14th September, 1970, before the hearing by the Registrar, a meeting of creditors was intended to be held: it was not a...
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