Kaupthing Singer & Friedlander Ltd and Another (Petitioner) v Mr Christopher Coomber and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ARNOLD |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWHC 3589 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: 24 & 25 OF 2011 |
| Date | 19 December 2011 |
[2011] EWHC 3589 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
BANKRUPTCY COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Arnold
Claim No: 24 & 25 OF 2011
MR TOM SMITH (Instructed by Messrs Freshfields Bruckhaus Deringer) appeared on behalf of the Petitioner
THE RESPONDENTS did not appear and were not represented
Approved Judgment
Monday, 19 December 2011
I have before me an application by Christopher Coomber and Dawn Burrus, who are the respondents to two bankruptcy petitions by the petitioner, Kaupthing Singer and Friedlander Ltd, for inter alia an adjournment of the hearing of the petitions on medical grounds. The application is made by an application notice dated 12 December 2011, sealed on 14 December 2011, although the nature of the application does not become apparent until one reads the supporting joint witness statement of Mr Coomber and Miss Burrus, dated 12 December 2011, and in particular paragraph 11 of that statement. It is worth noting at the outset that the primary application made in subparagraph (a) of paragraph 11 is for dismissal of the petitions pursuant to CPR rule 1.1(2)(b), (2)(c) and (2)(d), and I will come back to what is said in support of that in due course. But in the alternative, in subparagraph (b) an application is made for a long-term adjournment of the hearings of the bankruptcy petitions on medical grounds.
The respondents requested that this application be considered in first instance on paper. Having considered it on paper last Friday, 16 December 2011, I directed that the application be listed for hearing immediately prior to the bankruptcy petitions today. In response to being notified of that, the respondents made it clear that they would not be attending today's hearing in any event. As they indicated, the respondents have indeed not attended this morning. Accordingly, I am now considering the application for an adjournment in their absence.
Having considered the matters relied upon by the respondents, I shall dismiss the application for an adjournment for the following reasons. To begin with, there is the quality of the medical evidence relied upon. The respondents had made a previous application for an adjournment of the hearing of the bankruptcy petitions. At that time the petitions were listed for hearing on 25 November 2011. By application notice dated 21 November 2011 the respondents sought an adjournment on medical grounds. Warren J considered that application on paper on 23 November 2011, and he acceded to it to the extent of vacating the hearing on 25 November 2011 and directing that the hearing be relisted for hearing between 12 and 21 December 2011. He further directed as follows:
"If any application is made by the Respondents for any further adjournment, it be supported by the following:
"1. In the case of Mr Coomber, medical evidence signed by the relevant medical practitioners providing clear evidence of
a. Mr Coomber's inability by reason of his mental health to (i) prepare and (ii) conduct the defence of the bankruptcy petitions to which he and Ms Burrus are respondents;
b. if it be the case that he is unable by reason of his mental health to appear to make the application for a further adjournment, his inability so to appear; and
c. when it is considered by such practitioners that Mr Coomber will have recovered his health sufficiently (i) to prepare and (ii) to conduct the defence of the bankruptcy petitions to which he and Ms Burrus are respondents.
"2. In the case of Ms Burrus, evidence to explain why she cannot, or should not be expected to, attend any hearing to conduct her own defence of the petition to which she is respondent."
Although the respondents have duly filed medical evidence in accordance with that direction, I regret to say that I am unimpressed with the quality of that evidence. In the case of Mr Coomber the evidence takes the form of two letters. The first letter is a letter from his GP dated 28 November 2011. This states in the first sentence:
"Mr Coomber cannot attend court or prepare for his defense (sic) because he is severely depressed."
Then the last sentence reads:
"At the moment I do not know when he will be fit to proceed in court."
While on its face that would appear to support the application, it does not stand alone. More pertinently, to my mind, there is also a letter dated 8 December 2011 from a doctor who I understand to be Mr Coomber's consultant psychiatrist at Barnet, Enfield and Haringey Mental Health NHS Trust. The letter states, in short, that Mr Coomber has a 15-year history of depression and anxiety disorder, but reported a significant decline in his mental state following a court hearing on 16 November 2011. The key passages for my purposes in the letter are as follows:
"At this point, I do not believe that it will benefit Mr Coomber to continue to provide legal representation for himself or his partner Ms Dawn Burrus. I believe his continuing to do so will be detrimental to his Mental Health."
Then a little later:
"It is difficult to estimate how long he will require treatment for at this point. I will however expect his treatment to continue for at least six months, at which point we could review the matter."
That is clear evidence that the consultant believes that it will be detrimental to Mr Coomber's mental health to continue to provide legal representation for himself and Ms Burrus. However, it does not go so far as to state that it is the consultant's view that Mr Coomber is unable to attend court this morning, or indeed at any time, to defend the bankruptcy petitions.
In the case of Ms Burrus there is simply a letter dated 5 December 2011 from her GP stating that she has been suffering from anxiety and depression. It does not state that she is not able to attend a hearing. Ms Burrus also says in the joint witness statement that she is unable to effectively represent either herself or Mr Coomber in the absence of Mr Coomber, who has more detailed knowledge of the matter. I am sure it is correct that Mr Coomber has more knowledge of the matter than Ms Burrus does, but I am unable to see why she is unable to present her own side of the story in response to the petition against her personally.
In short, I am unpersuaded by the medical evidence that Mr Coomber and Ms Burrus are unable to attend the hearing today. But even if I were to take a more charitable view of the medical evidence, there are other reasons why I would not grant the adjournment. The first is that these bankruptcy petitions have been pending for nearly a year and have already been adjourned twice. It is time that they were dealt with. It seems to me that it cannot be desirable from the respondents' point of view, let alone the petitioner's, for this to be hanging over them indefinitely.
Secondly, it is clear from the respondents' application and the medical evidence relied upon that there is no prospect of any immediate improvement in Mr Coomber's mental health. On the contrary, the gravamen of the evidence is to the effect that he requires at least six months in which to recover his mental health and that there is no guarantee whatsoever that even a six-month adjournment will be sufficient for that purpose. Accordingly, if the court were to accede to the application, the result would have to be an adjournment of at least six months, but with no guarantee that at the end of that time Mr Coomber would be any more fit to represent himself and Ms Burrus than he is today. That seems to me to be an unattractive prospect.
Thirdly, it is important to appreciate that, notwithstanding Mr Coomber's protestations of inability effectively to represent himself, that is not deterring Mr Coomber and Ms Burrus from being active in preparing legal applications of one kind or another. Thus they were able as recently as 14 November 2011 to put together an application notice and supporting joint witness statements for a stay of these proceedings and two other sets of proceedings. That application came before His Honour Judge Maloney QC on 16 November 2011. He partly dismissed it and partly listed it to be heard together with the bankruptcy petitions. Then, as I have already indicated, the application that is before me is only in the alternative for an adjournment. It is primarily for dismissal of the petitions. Moreover, in yet further alternative, the respondents seek again to stay the bankruptcy proceedings and to appeal a judgment of Lewison J (as he then was) in related proceedings and to vary or to dismiss an extended civil restraint order granted against them by Eady J in related proceedings. The combined witness statement in support of the application runs to 13 pages and 52 paragraphs. Yet further, the covering letter and subsequent correspondence from the respondents makes it plain that the respondents are in the process of preparing private criminal prosecutions against various people who they believe to have been guilty of fraud and other criminal acts. Thus it is not the case that Mr Coomber's mental health is preventing him from undertaking work on legal applications. On the contrary, he is continuing to work on legal applications, merely not actually attending court to support the respondents' present application or to resist the bankruptcy petitions.
Fourthly, it is to be borne in mind that, as will be apparent from what I have said already, Mr Coomber and Ms...
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