In a case where there had been no reasoned determination of the arguments at the earlier stage and the application had simply been struck out for a formal defect, then the principle referred to in Turner was not engaged.
The court heard an appeal against a bankruptcy order where an adjournment of the hearing of the petition had been refused despite a medical certificate in respect of the debtor. There had also been a misunderstanding about the application to set aside the statutory demand, which was dealt with on paper under rule 6.5(1) and dismissed on technical grounds, namely that the reasons for disputing the debt had been set out in a letter rather than an affidavit.
Held: The appeal was allowed.
The court dealt with the issue of whether the applicant should be allowed to raise the same issues on the appeal against the bankruptcy order as he raised on the application to set aside the statutory demand: ‘But where, as in the present case, there has been no reasoned determination at all at the earlier stage and the application has simply been struck out for a purely formal defect in the manner in which it was brought, then it seems to me that the principle referred to by Chadwick LJ [i.e. the general rule in Turner v Royal Bank of Scotland plc] is not even engaged in the first place. If there were any doubt about the ambit of the dicta in that case I think it is resolved by his own subsequent statements in the case of West Bromwich Building Society v Crammer [2002] EWCA Civ 1924 (unreported) 19 December 2002 . . the learned Lord Justice referred to his earlier observations in Turner v Royal Bank of Scotland plc [2000] BPIR 683 in response to a suggestion that there had been some concern as to the width of those observations. He then says this: ‘Buxton LJ expressly agreed with those observations; and Aldous J agreed with both judgments. Those observations were plainly obiter in that case; but will be given, no doubt, the weight which they deserve. But they do not have the effect of depriving a court exercising its functions under s271 of the duty to decide whether or not to make a bankruptcy order on the material which is then before it. Plainly, a court will ask itself whether arguments that are being run before it have already been run and failed; and it may go on to ask itself why arguments which have been run before it have not previously been run. But it is for the court to decide whether the conditions which must be satisfied before a bankruptcy order can be made are satisfied.’
Judges:
Mr Launcelot Henderson QC
Citations:
[2003] BPIR 803
Jurisdiction:
England and Wales
Citing:
Cited – Turner v Royal Bank of Scotland plc CA 6-May-1999
The bank replied to several enquiries as to the customer’s credit status without first seeking the customer’s consent. It claimed that this was general practice at the time.
Held: The practice fell short of being ‘notorious’ or well known, and . .
Lists of cited by and citing cases may be incomplete.
Insolvency
Updated: 07 May 2022; Ref: scu.230919