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Cite as: [2001] EWCA Civ 1153

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Neutral Citation Number: [2001] EWCA Civ 1153
NO: C/2001/0812


Royal Courts of Justice
London WC2

Monday, 9th July 2001

B e f o r e :




Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
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MR NICHOLAS BRIGGS (instructed by Brachers, Somerfield House, 59 London Road, Maidstone, Kent))
appeared on behalf of the First and Second Respondents
MR JONATHAN LOPIAN (instructed by Rix & Kay, Uckfields)
appeared on behalf of the Third and Fourth Respondent



Crown Copyright ©

    Monday, 9th July 2001

  1. LORD JUSTICE ROBERT WALKER: This was to have been an application by Mr John Hoath, represented by Mr Charity of Romford Independent Legal Advice Centre ("RILAC"), for permission to appeal from an order of Neuberger J made on 28th June 2000 in the Chancery Division in Bankruptcy on an appeal raising several points in Mr Hoath's bankruptcy.
  2. Mr Hoath is not present this morning either in person or by Mr Charity. I am told that he has gone to hospital for reasons which are not known to anyone in court, and Mr Charity appears to have taken the view that in those circumstances this matter cannot go ahead. However, in view of the history of the matter and the presence in court today of counsel and solicitors for various respondents, it seems to me that justice requires that I should proceed to deal with the matter. I have read with care all that has been placed in front of me by Mr Hoath and Mr Charity and the appropriate disposal of the matter seems to me very clear.
  3. Mr Hoath was adjudicated bankrupt on 9th December 1991 so that his bankruptcy has been running not far short of ten years. It is not clear to me why the bankrupt was not discharged from bankruptcy after three years under section 279 of the Insolvency Act 1986, apart from an interruption by an individual voluntary arrangement which failed. However, it is common ground that this bankruptcy is still continuing.
  4. The matter has a long and unhappy history. Neuberger J said that it was appropriate to call it a "tragedy", and the use of that expression is not, it seems to me, any exaggeration. Mr Hoath's mother died in 1984. Administration of her estate was in the hands of a firm of solicitors in Tunbridge Wells, Cripps Harris Hall & Co., and they also undertook various other pieces of professional work for Mr Hoath. He was at that time, and possibly still is, both a farmer in Crowborough, East Sussex and an international lorry driver. He was therefore often abroad.
  5. Unfortunately, Mr Hoath become very dissatisfied with his solicitors. His dissatisfaction was evidenced for instance by a letter dated 17th November 1990 which he sent to Mr Raymond, a partner in that firm. The solicitors' response was uncompromising. They sued Mr Hoath in two separate actions and obtained two judgments in default for a total of about 15,000.
  6. Mr Hoath contends in his written submissions to this Court and has contended since about 1995 that these judgments should have been set aside both on the ground that section 69 of the Solicitors Act 1974 prevented the solicitors from suing him and on grounds of defective service at a time when Mr Hoath was abroad. The fact is however that for whatever reason he did not take prompt action to have the judgments set aside. The subsequent history of the matter is set out in the judgment of Morritt LJ in this Court when the matter was before this Court on 17th November 1995: see [1998] BPIR 342, which I refer to not as an authority but simply as a guide to the rather complicated chronology of this matter.
  7. What follows is a summary of the history as set out in the judgment of Morritt LJ. The solicitors' first statutory demand was set aside on the grounds of non-disclosure of a solicitors' lien, but a second statutory demand was upheld in the Tunbridge Wells County Court on 2nd October 1991. A bankruptcy order followed on 9th December 1991. An appeal against that order was dismissed by Sir Donald Nicholls Vice Chancellor on 14th April 1992. The Vice Chancellor also dismissed on 17th June 1992 an application under section 282 of the Insolvency Act to annul the bankruptcy. The district judge in Tunbridge Wells County Court refused a further application to annul on 13th December 1994. In the meantime, that is in 1992 and 1993, there had been an application for an individual voluntary arrangement but it failed.
  8. On 12th April 1995, Rattee J dismissed Mr Hoath's further appeal and made a Grepe v Loam (1887) 37 order (see Grepe v Loam Ch D 168. On 31st July 1995, Rattee J refused to review his previous order except that he broadened the width of the Grepe v loam prohibition. That order of 31st July 1995 was the order from which this Court refused to grant permission to appeal at the hearing on 17th November 1995, which I have mentioned.
  9. That seems to have been the end of activity in the bankruptcy proceedings for some time, although there have in the interim been matrimonial proceedings between Mr Hoath and his former wife. They were divorced, I understand, in 1998.
  10. The most recent round of litigation seems to have been provoked by moves to obtain an order for possession of Mr Hoath's farm and farmhouse at Crowborough. A possession order was made by District Judge Polden in the Tunbridge Wells County Court on 24th November 2000. On 31st October 2000 and again on the 16th February 2000, District Judge Polden, who has dealt with many applications in the Tunbridge Wells County Court, refused applications by Mr Hoath for permission to make further applications in his bankruptcy. The refusal was because no new point of any merit was being raised.
  11. Mr Hoath appealed to the Chancery Division. The matter came before Neuberger J on 8th June 2000. There were five applications, all of which the judge refused. First, he refused to review Rattee J's order made on 31st July 1995. It had already been considered and upheld by the Court of Appeal and Neuberger J rightly concluded that he had no power to hear what would have been in effect a further appeal from it. Second, he declined to give directions in an application for directions in a contempt of court application made by Mr Hoath which the judge regarded as misconceived. Third and fourth, he upheld the possession order and the two decisions of the district judge not to permit new applications because the points had already been considered on numerous occasions, including the application to this Court as long ago as 1995. Fifth, and last, he declined to transfer the proceedings to the Romford County Court in order to meet the convenience of Mr Charity in his work at RILAC.
  12. In his appellant's notice Mr Hoath seeks to raise the point under section 69 of the Solicitors Act 1974 and the point about service of the original proceedings which, he says, all previous courts have ignored. He also says that Neuberger J should have granted an adjournment on 8th June.
  13. I cannot accept that all previous courts have ignored these points. On the contrary, they have been considered on numerous occasions, but as Morritt LJ pointed out in 1995, they should have been raised in 1991 when Mr Hoath was seeking to set aside the statutory demand.
  14. In his application Mr Hoath is, in substance, trying to reopen in 2001 an issue which the Court of Appeal in 1995 said should have been raised in 1991. Whatever sympathy the Court may feel for Mr Hoath (and it is hard not to feel great sympathy for the position in which he now finds himself) there is no prospect whatever of another constitution of the Court of Appeal taking a different view; nor, in my view, does Mr Hoath's reliance on the Human Rights Act 1998 assist him. District Judge Polden considered both article 8 and article 6 of the Convention as did Neuberger J. Rights to enjoyment of one's home under article 8 are not absolute, as it is well known. As to article 6, restrictions on a litigant's' right to an oral hearing such as may be imposed by a Grepe v Loam order are not an infringement of his rights provided that they are reasonable and proportionate. The orders made in this case meet that test.
  15. Finally, there is the issue of the judge's refusal of an adjournment. The appeal to the Chancery Division should have been heard on 19th December 2000. Through no fault of Mr Hoath it was not heard on that day. In March 2001, it was listed floating over the 6th to 8th June. On 5th June Etherton J ordered an adjournment on a not on notice application but reinstated the application at a further hearing on notice on 6th June. All those decisions, and especially the decision of Neuberger J not to grant an adjournment, were well within the judge's discretion over case management decisions.
  16. A further appeal in this matter does not begin to meet the stringent test laid down by section 55 of the Access to Justice Act 1999 nor, it seems to me, would it have the slightest chance of success. For all those reasons I dismiss this application.
  17. (Application for permission to appeal dismissed; costs to be subject to detailed assessment)

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