McGuire v Rose

This is the hearing of an application for permission to appeal against an order of Lewison J in the Chancery Division made on 28 July 2010. It has had a longish history. The latest stage in that history is that Rimer LJ considered the matter, first of all at an oral hearing and then on paper with the benefit of further documentation submitted by Mr McGuire, the appellant, who was then acting in person.

Rimer LJ directed that the matter should proceed by way of an oral hearing of the permission to appeal application on notice to the respondent, Mr Rose, with the appeal to follow if permission were granted and before a court consisting of two judges.

Mr McGuire had the benefit of counsel instructed pro bono before Lewison J. Until very recently he has not had the benefit of representation in relation to the appeal. He applied for an adjournment of this hearing some ten days ago. At that stage I refused the application but expressly without prejudice to his ability to renew the application today.

What has transformed the position now is that he again has the benefit of counsel instructed by the Bar Pro Bono Unit, Ms Start, who has only just come onto the scene, if I can put it that way. Certainly last night she had not even seen the judgment of Lewison J which is the subject of the appeal.

The paperwork in the case is fairly substantial and it is obviously right and proper that, in the interests of Mr McGuire and in the interests of justice generally, she should have the opportunity to take instructions, acquaint herself properly with the papers and be able to present Mr McGuire's case in support of the application for permission to appeal and the appeal in a properly considered and prepared manner.

Mr Briggs, appearing for the respondent, who is the former Trustee in Bankruptcy of Mr McGuire, opposes the application on the basis that the adjournment will cause his client to incur yet further expense which in practice, even if successful at the end of the day, he is most unlikely to be able to recover. Notwithstanding that opposition it seems to me that the appropriate order is that the application should be adjourned to come on in the New Year and that is the order that I would make.

There has been mention of the possibility of an application to adduce additional evidence on the appeal. I should say that the appeal is a second appeal so that, in itself, presents an additional hurdle for the appellant in obtaining permission to appeal. A point that Mr Briggs makes is that the additional evidence which might be the subject of an application, which does not yet exist, so far as we know, is something the relevance of which has been pointed out to Mr McGuire on a number of occasions since at any rate a judgment of Master Teverson in 2006. So there may be difficulties for him in applying for permission to adduce further evidence in support of the appeal. I say nothing more about that beyond recognising that he may have difficulty in satisfying the relevant conditions to be allowed to rely on additional evidence. Nevertheless, it seems to me that the right order is to adjourn the case so that Ms Start can get to grips with the papers, and can take instructions and it may be that steps can be taken to obtain valuation evidence which would be potentially relevant to the appeal.

There has been some discussion of timing. It seems to me that the appropriate order is to adjourn the case so that it should come on early in 2013 but that it should come on for hearing on a date which both Ms Start and Mr Briggs can manage, consistently with their other commitments. As I understand it that means not before the beginning of February and so I would propose that the application be adjourned to be relisted not before 1 February 2013 on a date convenient to Ms Start and Mr Briggs. The case will not be reserved to the members of the present court although it may be that in practice the listing department will find it convenient for one or both of us to hear the case if we can be made available for the purpose.

That is the order that I would make.

I agree.