Spencer Michael v The Official Receiver
| Jurisdiction | England & Wales |
| Judge | Mr Justice Roth |
| Judgment Date | 31 July 2012 |
| Neutral Citation | [2013] EWHC 4286 (Ch) |
| Court | Chancery Division |
| Date | 31 July 2012 |
| Docket Number | Claim No: CH/2012/0009 |
[2013] EWHC 4286 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Mr Justice Roth
Claim No: CH/2012/0009
The Appellant appeared in person.
MR LEWIS appeared on behalf of the Respondent.
Approved Judgment
Tuesday, 31 July 2012
Introduction
This judgment follows the oral hearing of an application for permission to appeal against the order of Chief Registrar Baister made on 13 December 2011 imposing a bankruptcy restriction order ("BRO") on the appellant, Mr Spencer Michael, for a period of 8 years. The matter has come on for oral hearing pursuant to my order of 23 May 2012. The hearing has been delayed through issues concerning the transcript, first, of the supplementary judgment of the Chief Registrar delivered on 13 December dealing with the duration of the order and, secondly, a request for a transcript of the hearing below (a matter to which I shall return).
This is the later stage in long-running proceedings arising out of Mr Michael's bankruptcy. The bankruptcy order against him was made on 29 March 2007 on the petition of the judgment creditor presented, he told me, in late 2006. The Official Receiver estimated the deficiency in the bankruptcy at over £1.5 million. This is, therefore, a substantial personal bankruptcy.
The events following the bankruptcy, in very brief summary, were as follows. On 28 June 2007, a trustee was appointed. On 8 February 2008, Registrar Derrett suspended the discharge period to 29 June 2008. On 13 June 2008, a BRO was applied for. On 6 July 2008, Registrar Derrett made an interim BRO. There were then delays while Mr Michael brought proceedings challenging the BRO provisions in Schedule 4A of the Insolvency Act 1986 Act and also the disqualification provisions in the Company Directors Disqualification Act 1986 ("the CDDA") under the Human Rights Act 1998. Those challenges were unsuccessful. On 17 February 2011, Registrar Jacques made a BRO. Mr Michael appealed, and on 10 August 2011 I set aside the BRO and ordered a rehearing. Mr Michael sought to appeal my order, but permission to appeal was denied on the papers by Patten LJ in the Court of Appeal. The rehearing therefore took place, which led to the Chief Registrar's imposition of a BRO, as I said, on 13 December 2011.
It is also relevant to note that Mr Michael had been a director of seven limited companies, which were wound up on public interest petitions presented by the Secretary of State by order on 29 April 2009. There were, I believe, also other appeals that he brought in the bankruptcy proceedings which it is unnecessary to go into.
Mr Michael appeared before me in person, as he has throughout, but it is right to say that he is no ordinary litigant in person. He served grounds of appeal comprising 295 paragraphs, many of which have sub-paragraphs and which stretch to 119 closely typed pages. He apologises at the outset of those grounds for their length, but says that is due to the number of issues that he wishes to raise. He then served a skeleton argument of 63 paragraphs. Both the grounds of appeal and the skeleton argument are replete with reference to statutory provisions, the Insolvency Rules and the Civil Procedure Rules, and to decided cases, including cases which are unreported. He presented the court below with two lever arch files of authorities and supplemented them in this court with a third file of authorities, to which he added some 20 further cases handed up at the outset of the appeal hearing. Those include unreported cases. In short, Mr Michael is an individual who, although not a lawyer, carries out extensive legal research and is not in the least inhibited in advancing legal arguments supported by copious references to decided cases and legislative provisions. Further, although my order directing this hearing said that it would be for half a day, I allowed Mr Michael to address the court for some 4 1/2 hours and, therefore, the proceedings on his application lasted all day. He added brief submissions before I commenced delivery of this judgment today. He has therefore been afforded as a litigant in person very considerable leeway in advancing his arguments, which would never have been granted to a professional advocate.
Permission to appeal.
As a preliminary point, Mr Michael submits that permission to appeal is not required for his appeal to this court. I told him at the outset that I regarded it as clear that permission to appeal is required under the rules. Those rules are set out clearly in the brief skeleton argument served by counsel for the respondent. They are the Insolvency Rules, rule 7.49A(1), coupled with the Insolvency Proceedings Practice Direction, paragraph 17.Undeterred by this, Mr Michael pursued the point, taking me to the case of Secretary of State for Trade and Industry v Paulin [2005] EWHC 888 (Ch). There, the Vice-Chancellor held that permission to appeal was not required against a registrar's decision in CDDA proceedings, but it is clear from his judgment that this conclusion was based on paragraph 17.6 of the Practice Direction: Insolvency Proceedings 2000, which states in terms that a first appeal does not require the permission of any court — see paragraph 16 of the judgment. That provision is no longer to be found in the practice direction, as it was in force when this appeal notice was filed (the 2007 Practice Direction); nor, for that matter, is it in the current Practice Direction of 2012. It has been replaced by the provision in paragraph 17.6 (to which counsel refers in his skeleton argument) and which states in terms as follows:
"A first appeal is subject to the permission requirement in CPR Part 52, rule 3."
Moreover, the principal provision in rule 7.49A was introduced in 2010, long after the judgment in Paulin and, of course, long before the Chief Registrar's judgment which Mr Michael is seeking to appeal. This is, therefore, a thoroughly bad point.
The appeal
Being an appeal and not a rehearing, the facts found by the court below are binding unless they can be said to be against the weight of the evidence. The court was entitled to draw any inferences from the facts, as is the appeal court, and the questions on appeal are whether those facts justified the decision to impose a BRO and whether its duration is excessive and then, as a separate matter, if the BRO is upheld at all, the exercise of the court's discretion as to costs. The judgment and order can also be challenged, of course, on grounds that they are wrong on the law.
I turn, therefore, to the grounds of appeal which Mr Michael seeks to advance. In his Statement of Grounds he sets out seven grounds. They are numbered 1–6, but there are two grounds labelled "Ground 6" and so I shall refer to them as Ground 6A and 6B. Ground 6A concerns the duration of the BRO and ground 6B concerns costs. I shall therefore return to those at the end. Mr Michael realistically conceded that there is considerable overlap between the other five grounds, especially grounds 1 and 2, which are more wide-ranging, and then 3, 4 and 5 which relate to the three distinct allegations which were the basis of the application made by the respondent for the BRO.
I hope Mr Michael will understand if, with all the detail and copious authorities that he has put before the court, I do not refer to every point that he has taken or every authority relied on. If I were to do so, this would be a very much longer judgment which it would have been impossible to deliver until after the long vacation. Mr Michael expressed the particular wish to avoid further delay in a decision in his case.
One point in this case goes to the essence of a fair hearing. The Chief Registrar's decision was handed down on 13 December 2011 (as I have mentioned). It bears the date 2 December, but that is clearly an error. It followed a hearing held over three days on 3, 4 and 7 November. Thus, it is a reserved judgment. Mr Michael complains that the judge below frequently interrupted him in "an inconvenient, abrupt and aggressive manner" and that the judge was "hostile". He also says that in the course of the hearing the judge told him that he did not accept that Mr Michael was being honest. That, he says, has two consequences. First, it discloses bias on the part of the judge who, he submits, approached the application with a closed mind. Second, it caused Mr Michael "a distressing sense of panic", so that he was not able to put his case properly. Essentially, this submission amounts to saying that he was not being given a fair hearing before an independent tribunal, and indeed he relies on article 6 of the European Convention on Human Rights.
Faced with that allegation, the respondent contended in his counsel's skeleton argument that it was necessary to have a transcript, and Mr Michael also sought an order for a transcript of the 3-day hearing at public expense. In the light of those applications, I ordered that initially a transcript should be provided of one of the three days, that day to be of Mr Michael's choosing. He made his choice, but it then emerged, after the request for the transcript was passed on, that the tape had not been running in court throughout the hearing. Unknown to the Chief Registrar, the staff, who were new to the Rolls Building, had not turned it on as required. Thus it emerged that there were no tape recordings of any hearings held in that hearing room before 9 November, after the move of...
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Spencer Michael v The Official Receiver
...EWCA Civ 534 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION Mr Justice Roth [2013] EWHC 4286 (Ch) Royal Courts of Justice Strand London, WC2A 2LL Lord Justice Rimer A2/2013/202 Between: Spencer Michael Appellant and The Official Receiver R......