B2/00/3572

Neutral Citation Number: [2001] EWCA Civ 271
IN THE SUPREME COURT OF JUDICATURE   
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCER DIVISION
(His Honour Judge Weeks QC,
sitting as a Judge of the High Court)
								Royal Courts of Justice
								Strand
								London WC2

								Thursday 22 February 2001

B e f o r e:

LORD JUSTICE ROBERT WALKER

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Re:  MARIO BERTI, a bankrupt

Between:
DOMENICO BERTI
Appellant/Applicant

and:

STEELE RAYMOND (a Firm)
Respondent/Respondent
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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared on his own behalf

The Respondent did not appear and was not represented

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J U D G M E N T
Thursday 22 February 2001
1.	LORD JUSTICE ROBERT WALKER: This is an application by Mr Domenico Berti, who has appeared in person, for permission to appeal from an order made on 16 November 2000 by His Honour Judge Weeks QC, sitting as an additional judge of the Chancery Division of the High Court in Bankruptcy. Judge Weeks dismissed Mr Berti's appeal from an order made on 23 June 2000 by Deputy District Judge Hurley and affirmed on 10 July 2000 by District Judge Edwards, in each case at sittings in the Bournemouth County Court. 
2.	The order of 23 June 2000 was a bankruptcy order in respect of the late Mr Mario Berti. Mr Mario Berti was the father of Mr Domenico Berti, the applicant today, and I will refer to him as “the father”. 
3.	The father died on 13 January 2000. It seems to have come as something as of a surprise to at least one district judge that a man or woman can be adjudicated bankrupt after death, but that is the law: see s 265 of the Insolvency Act 1986 and article 5 of the Administration of Insolvent Estates of Deceased Persons Order 1986 (“the Administration Order”). That is the law because the crucial date is the date of presentation of the petition, which was in this case 17 December 1999. 
4.	I should at this point pay tribute to Mr Berti's admirable preparation of the complicated papers in this case, including a detailed six-page chronology of which any barrister or solicitor could be proud. I have found that chronology of great assistance. 
5.	This matter has a long and unhappy history. The father was admitted to hospital in Bournemouth in 1994. Mr Berti makes strong criticisms, and it may be justified criticisms (although I have only heard one side of the story) about his father's treatment in hospital. Repeated complaints to various quarters did not produce satisfaction and the father, with the support of his wife and his son, decided to go to law. He instructed a firm of solicitors in Wimborne, Steele Raymond. 
6.	Unfortunately, the father's relationship with the solicitors proved unsatisfactory, to say the least. Mr Berti has made some strong criticisms of the solicitors. They may be justified, but again I have only heard one side of the story. The solicitors for their part were dissatisfied because their fees were not paid. Mr Berti tells me this morning that a sum of about £5,000 was paid by the father and that the family holds a receipt for it, but the solicitors were pressing for further fees. They came off the record, apparently in January 1999 although there is some dispute about that, and the father's action against the hospital was struck out following an unless order in March 1999. Between May and November 1999 the solicitors were demanding from their former client sums ranging from £6,000 to a minimum of £4,783. On 16 November 1999 the solicitors served a statutory demand under the Insolvency Act 1986 for £4,987. 
7.	By that time the father was seriously ill. He had been in hospital since July 1999. His wife and his son were doing their best to look after his affairs. It is apparent from the papers that the son, on behalf of the father, wrote numerous letters to try and get other solicitors to act, but without success. The father died, as I have said, on 13 January 2000. 
8.	The return date for the petition was 8 February 2000. The matter came before District Judge Weintraub, who did not know before the hearing of the father's death. The hearing was attended by Mrs Berti and her son. The district judge seems to have taken the view, understandably but incorrectly, that if a death certificate was produced the petition would be dismissed. At that stage he did not know that a person can be adjudicated bankrupt after death. Mr Berti expressed doubt about that, and he was right to do so. The petition was adjourned until 15 March 2000. On 2 March 2000 Mr Berti wrote a letter to the county court expressing his concerns and making clear that the debt was disputed. The fact is that the father had not taken any steps to have the solicitor's statutory demand set aside and after his death, strictly speaking, neither his widow nor his son had any standing to do so, since neither had been constituted formally as the father's personal representative. I should add that it appears that the father died intestate. 
9.	On 15 March 2000 the matter came before Deputy District Judge Stone. The solicitors were represented by an advocate. Mrs Berti and her son again appeared in person. The deputy district judge was told again that the debt was disputed. He said that there were certain procedures which had to be followed ‑ meaning, of course, an application to set aside the statutory demand on the ground that the debt was disputed in good faith. The solicitors' advocate said that the family had had ample time to take those steps, but the deputy district judge fairly remarked: 
“It may have been served on somebody who was very sick at the time and who died soon afterwards.” 
10.	That was an apt description of what had happened. However, the deputy district judge also commented that five weeks had passed since 8 February and that Mr Berti seemed to have done nothing. Mr Berti responded that he had been trying to get legal advice but had been unsuccessful. There was a further complication, in that Mrs Berti's father was seriously ill in Italy and he needed to be visited. The deputy district judge granted an adjournment and the transcript shows that towards the end of the hearing this dialogue took place: 
“Solicitors' Advocate: Could I also ask for a direction that Mr Berti files his grounds in writing.
Judge Stone: Yes. You must file your grounds for opposing this in writing. 
Mr Berti: You will need to explain. By doing so will that mean that this case is referred to County Court proceedings?
Judge Stone: It is County Court proceedings, but it is bankruptcy within the County Court. If you want to issue a claim in the Small Claims Court, by all means do that, but if you do not deal with the bankruptcy as well, then there is no point in issuing --- 
Mr Berti: Essentially what we have got to do is get a defence in.
Judge Stone: Yes. 
Mr Berti: Sir, would you mind if I posted the defence via the courts, as opposed to --- 
Judge Stone: It will have to be done through the court. You get yourself a solicitor and make sure that he deals with this immediately. 
Mr Berti: If we pop something in the post within the new few days then - within the next day, rather - would that be sufficient?
Judge Stone: Yes, it would. I will adjourn it for seven days, to enable you to do that. 
Mr Berti: Following that, sir?
Judge Stone: Following that, I do not know. It probably will not be me dealing with it. I am going to adjourn today's hearing for seven days, to enable you to see a solicitor and get your act together.”
11.	I comment that the deputy district judge was there dealing with the matter in a very informal way, and was not taking any point on the absence of a grant of representation being a bar to the steps which Mr Berti proposed to take. I in no way criticise the deputy district judge for being prepared to deal with the matter informally. The difficulty is, I think, when the matter then came back in front of a another judge who was not so willing to deal with the matter informally.
12.	Mr Berti did on 20 March 2000 put in a defence document, which is in the bundle before me. He also put in a small claim against the solicitors. Both those courses seem to have been, if not encouraged, at any rate countenanced by Deputy District Judge Stone, despite the objection to both that, as there was no grant of representation nor had Mr Berti been appointed to represent his father's estate, he had, strictly speaking, no standing in the matter. That was pointed out in relation to the small claim in a letter dated 14 April 2000 written on the instructions of yet another deputy district judge, Deputy District Judge Marshland. 
13.	The short adjournment of the bankruptcy petition seems to have turned into a substantially longer adjournment. The petition was heard again on 3 May 2000 by Deputy District Judge Hine. There is no transcript of that hearing, but the order which he made was as follows:
“1. Personal Representative to file notices of appearance in this petition by filing and serving certified copy letters of administration by the 1st June 2000.
2. There shall be no appearance by or on behalf of the Debtor in this petition save by formally appointed Personal Representative.
3. The Personal Representative shall notify the Court and the Creditors by letter that he adopts or rejects the letter dated the 18th March 2000 as Notice of matters in Dispute and if he rejects the letter to file notice of matters in dispute by 15th June 2000.
4. The matter be listed for a Disposal hearing on the 23rd June 2000 at 10.30 am with a time estimate of fifteen minutes.”
14.	I am not at all sure that, had I been sitting in the Bournemouth County Court, I would have made an order in those terms. It required either Mr Berti or his mother to obtain a formal grant of Letters of Administration, a course which takes some time and which is often not required in a case such as this, where the estate is small because most of the property is joint property which passes automatically to a surviving widow. Under article 5 of the Administration Order, the deputy district judge could have ordered service (or, if necessary, reservice) of the petition on Mr Berti so as to give him standing without the formal grant; alternatively he could have taken the same course under rule 19.8 of the Civil Procedure Rules, as applied in insolvency matters. However, that was how Deputy District Judge Hine exercised his discretion. 
15.	At the adjourned hearing on 23 June 2000 Mr Berti could not produce Letters of Administration. Instead, he produced a letter, undated but apparently written on about 3 June 2000, from the Court Service, Leeds District Probate Registry in these terms:
“Probate/Letters of Administration is not normally required if assets are joint or under £5,000. But it is to the discretion of the bank/building society that hold the assets whether or not they require to see the legal document called a grant of Probate or Letters of administration. 
If you do require this document and wish to act on behalf of your mother please send the application forms [and then the official numbers are given] to the probate registry you want to attend an interview at, along with a letter signed by your mother stating that you can act as her lawful attorney. That way you can attend the interview and administer the estate of the deceased on behalf of your mother. 
If you have any other queries or any difficulties with the applications forms please do not hesitate to contact me on the above number.”
16.	That plainly is a letter written by the probate branch of the court service in an attempt to be helpful and to address the practicalities of the situation. What the Probate Registry did not know was that Mr Berti needed the Letters of Administration in order to oppose a bankruptcy petition. On 4 June 2000 Mr Berti sent a copy of this letter to the Bournemouth County Court. I comment that it is clear from the papers that not only was Mr Berti repeatedly but unsuccessfully trying to obtain legal advice, he was also doing his best to keep the Bournemouth County Court informed as to the progress or lack of progress that he was making. 
17.	On 23 June 2000 the petition came before Deputy District Judge Hurley, who was the fifth district judge or deputy district judge who had had to deal with this matter. It is plain from the transcript that Deputy District Judge Hurley was not sympathetic to the non-production of Letters of Administration. It may be that he found Mr Berti somewhat agitated and argumentative. Plainly the hearing was not a happy occasion. Mr Berti asked repeatedly: “Who will defend my father?” - to which the answer was: 
“. . . you should have complied with the orders of the Court, and obtained Letters of Administration.” 
18.	Deputy District Judge Hurley made a bankruptcy order and on 10 July 2000 Deputy District Judge Edwards found no reason to set that order aside. 
19.	On 16th November 2000 (and now at last I come to the order which Mr Berti wishes to appeal) His Honour Judge Weeks QC dismissed an appeal from the bankruptcy order. He referred to article 5 of the Administration Order and to rule 19.8 of the CPR as incorporated into the Insolvency Rules. He referred to the main hearings on 15 March, 3 May and 23 June 2000. He did not, however, recount or comment upon what appears to me a fairly striking disparity between the informality with which some district judges or deputy district judges were prepared to deal with this matter and the greater degree of formality required by others. The judge dismissed the appeal on the ground that Mr Berti still had no grant of representation and therefore had no standing to bring the appeal.
20.	It seems to me that it may be arguable that the matter could have been approached rather more broadly. Mr Berti was an obvious candidate (indeed, apart from his mother he was the only possible candidate) for appointment under article 5 or rule 19.8 as a person to represent his father's estate and, if the exercise of discretion requiring a formal grant was unreasonable, it would be arguable that Mr Berti would have standing to appeal on the basis that he was a putative representative who had been applying for appointment as such.
21.	I have already indicated that I am not at all sure that I would have made the same order as Deputy District Judge Hine. I notice that that order was not appealed. Nevertheless, I cannot help feeling that Mr Berti has been singularly unfortunate to have had this matter dealt with by a succession of different judges who have come afresh to the matter and have adopted such different attitudes to the technicalities of the matter. As I have said, I am satisfied that Mr Berti has done his best to obtain legal advice in what is a complicated and technical matter, but has been unsuccessful in seeking legal advice. I am also satisfied that he has done his best to keep the county court informed of his difficulties.
22.	The great difficulty which Mr Berti faces in this court is that by s 55 of the Access to Justice Act 1999 a second appeal to the Court of Appeal is permissible only if the appeal would raise an important point of principle or practice or for some other compelling reason. When I first read the papers I was very disturbed about the sequence of events which had occurred, but very doubtful as to whether that demanding test was met. However, having been addressed by Mr Berti (who has addressed me with considerable skill as well as courtesy), I am narrowly persuaded that there is an important point of principle involved here. That is whether it is consistent with the overriding objective of achieving justice if a matter is heard in the county court by a succession of different judges who deal with the matter in a summary way without sufficient regard to what has happened at previous hearings. On that ground I have reached the conclusion that this is a proper case for a second appeal, and I will grant permission to appeal. At the same time I repeat the entreaty that I have already made to Mr Berti, to consider very carefully whether it is in his and his mother's interest to continue with an appeal which may well ultimately be unsuccessful, even though I am giving permission for it. 
ORDER: Application allowed