John Lewis Plc v Pearson
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE PUMFREY |
| Judgment Date | 08 October 2003 |
| Neutral Citation | [2003] EWHC 2596 (Ch) |
| Date | 08 October 2003 |
| Court | Chancery Division |
| Docket Number | 23 of 2000 |
[2003] EWHC 2596 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Mr. Justice Pumfrey
23 of 2000
MR. R. FISHER (instructed by Messrs. Weightman Vizard) appeared on behalf of the Appellant.
THE RESPONDENT did not appear and was not represented.
(As approved by the Judge)
This is a petitioning creditor's appeal from District Judge Campbell sitting in the Oxford County Court in matter number 23 of 2003. The petition was dismissed by District Judge Campbell in the following circumstances. The petitioner, John Lewis Plc (the well known retail store) obtained judgment against the debtor, Mrs. Pearson Burton, in the sum of £3,271.37 by a judgment in the Northampton County Court. A statutory demand, to which no exception has ever been taken, was served on 19th November 2002. The petition was heard at the Oxford County Court I believe on 1st April this year.
As one might expect, the underlying debt was in fact a debt on a store card, and it would appear that no substantial payments had been made to the petitioning creditor in respect of that debt from a date substantially anterior to the obtaining of the judgment and the hearing in the County Court.
The proceedings in the County Court took the following course. Mrs. Pearson Burton appeared in person and the petitioning creditor was, in the usual way, represented. Mrs. Pearson Burton was briefly examined by the district judge who, having ascertained that the petitioning creditor was seeking a bankruptcy order, proceeded to ask a series of questions with a view to ascertaining the actual overall financial position of the debtor. Having remarked that the amount outstanding on the petition debt was quite a small amount in the grand scheme of things, she found out, first, that the debtor had lost her job and, having gone through the employment history of the debtor, ascertained that the debtor lived at 2 Timothy Way in Blackbird Lees, which is a suburb of Oxford; that it had been purchased on a mortgage obtained from the Abbey National; that the purchase price was £93,000 and that the mortgage debt was £65,000; that the debtor had a 40% interest in the house; that the debtor could remain in the house without an exercise of the power of sale until her son was 23 but if she exercised the power of sale she could immediately get 40% of the proceeds 60% for the former husband, as I understand it, being a recognition of the fact that the husband would then be providing for the child of the marriage. The debtor also owed the legal aid fund some £15,000 which would of course be secured upon the house as well.
Having done a fairly rapid calculation on an informal valuation of the present value of the house at £115,000, the district judge came to the conclusion that on what I suppose I could call an immediate realisation of all the debtor's assets as far as they had been disclosed to the district judge, the debtor would be left with about £15,000. The first comment which the district judge then made was that "this is not a bankruptcy situation", a remark which is repeated at the end of the hearing as the principal reason for the district judge's refusal to make a bankruptcy order.
After concluding, however, that this was not, as the district judge put it, a bankruptcy situation, the district judge describes the application as wholly unwarranted and points out that there were other enforcement methods which the petitioning creditor might have exploited, and describes the application as wholly unnecessary.
The debtor admits to the existence of other debts before the district judge but states that they are all in control and the district judge appears to accept that.
The debtor then made an offer of £35 a month. I think it is unnecessary to refer to any other part of the exchanges between the debtor, the petitioning creditor and the district judge, save to note that the district judge also expressed the view that the use of the class remedy of bankruptcy in these circumstances was, as she put it, disproportionate.
Her final reasons are as follows:
"I am not satisfied that Mrs. Pearson Burton is in a bankruptcy situation so I shall not be making a bankruptcy order. I just want to satisfy myself that I can dismiss the petition. There are other methods of enforcement that can and should be used in this case, in my view. I see no reason why I should not dismiss the petition. As I have said, I think it is a disproportionate remedy, a bankruptcy order. I do not think that Mrs. Pearson Burton is in a bankruptcy situation and I think that John Lewis are well able to enforce their debt by way of a charging order, for instance. Mrs....
To continue reading
Request your trial