Society of Lloyd's v Bowman and others
COURT OF APPEAL (CIVIL DIVISION)
 EWCA Civ 1886, (Transcript: Smith Bernal)
HEARING-DATES: 19 DECEMBER 2003
19 DECEMBER 2003
Insurance - Lloyd's - Statutory demand against name - Application to set aside - Triable cross-claim - Insolvency Rules 1986, SI 1986/1925, r 6.5(4).
E Bannister QC and D Foxton for the Appellant; J Callman for the Respondents; Lloyd's Legal Services Department of One Lime Street; Grower Freeman of Ivor House
PANEL: WALLER, CHADWICK, CLARKE LJJ
JUDGMENTBY-1: CHADWICK LJ:
 This is the judgment of the Court on an appeal from an order made on 18 July 2003 by Laddie J on applications made by seven former Names at Lloyd's to set aside statutory demands served upon them by the Society of Lloyd's under s 268(1) of the Insolvency Act 1986. The demands were made in respect of monies payable under judgments obtained by Lloyd's against the Names on various dates between 11 March 1998 and 6 October 2000. Although, in each case, some payments had been made against those judgments, the amounts demanded (which include interest on the judgment debts) are substantial. Lloyd's have served the demands with the intention of obtaining bankruptcy orders against the Names.
 Section 267(2) of the Insolvency Act 1986 provides that a petition for a bankruptcy order against a debtor may be presented to the court by a creditor only if, at the time the petition is presented, four conditions are satisfied. The third of those conditions - set out in s 267(2)(c) of the Act - is that the debt is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay. Section 268(1) of the Act provides that, for the purposes of s 267(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately, and:
". . . (a) the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as "the statutory demand") in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor, at least three weeks have elapsed since the demand was served and the demand has neither been complied with nor set aside in accordance with the rules, or (b) . . ."
Paragraph (b) is not in point in the present case.
 Provision for the setting aside of a statutory demand is made by rr 6.4 and 6.5 of the Insolvency rr 1986 (SI 1986/1925). Rule 6.4 enables the debtor to apply to the court for an order. On the hearing of an application under r 6.4, the court may grant the application (inter alia) if the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt specified in the statutory demand - r 6.5(4)(a). That is the ground upon which the applications were made to Laddie J - as appears from the affidavit made on 19 November 2002 by the solicitor instructed by the Names.
 The counterclaims on which the Names sought to rely before Laddie J had been the subject of consideration in proceedings which had been before Cooke J, in the Commercial Court, in March and April 2003. The issue before Cooke J was whether Names who were party to those proceedings could raise, by amendment, claims based on misrepresentations said to have been made by Lloyd's at the times when they joined and in subsequent years. Cooke J, for reasons given in his judgment of 17 April 2003 in The Society of Lloyd's v Laws & others  EWHC 873 (Comm), had refused applications to amend (i) made by those Names whose claims were based on reliance in concluding underwriting arrangements first causing damage after 23 July 1982 (the date upon which he held that s 14(3) of the Lloyd's Act 1982 came into effect) and (ii) made by Names whose claims were based on reliance in concluding arrangements before that date but who had not previously advanced a "brochure" claim. Names in the first of those sub-categories include three of the respondents to the present appeal, Dr Cook, Mr Johnston and Mr Till. Those in the second sub-category include Mr Thomas-Everard - as the judge confirmed on 20 June 2003. But, in principle and subject to further particulars being given and considered, Cooke J was prepared to allow applications to amend made by Names ("Scheduled Names") who had previously notified the court of a claim for negligent misrepresentation made to them in a Lloyd's brochure after 11 October 1981 and relied upon in concluding arrangements prior to 23 July 1982. The Scheduled Names are those set out in the schedule to the order which he made on 23 May 2003. They include the other three respondents to this appeal (Mrs Bowman, Mr Drysdale and Mr Woyka).
 Put very shortly, Cooke J had held that claims first arising after s 14(3) of the Lloyd's Act 1982 had come into effect were barred by that section; it being impossible, in his view, to 'read down' that section under s 3(1) of the Human Rights Act 1998 so as to give it a different effect from that which it had been held to have in a line of authority predating that Act. Claims which were based on reliance on representations made before 11 October 1981 were barred by s 14B of the Limitation Act 1980; that being the date fifteen years before which proceedings against Names were commenced. Names who had made claims for negligent misrepresentation which could be said to have arisen within that 'window' - that is to say, between 11 October 1981 and 23 July 1982 - and who had first made those claims within the relevant limitation period (defined by reference to s 14A of the Limitation Act 1980) could, as the judge held, rely on s 35(5) of the 1980 Act so as to advance a claim arising out of the same or substantially the same facts. But proper particulars of the date of the operative representation, the date of reliance in concluding arrangements with Lloyd's and with Agents and the date of knowledge for the purposes of s 14A of the 1980 Act were required before formal permission to amend could be given in each individual case.
 Cooke J had refused permission to appeal from his order of 23 May 2003. At the time when the applications under r 6.4 of the Insolvency rr 1986 were before Laddie J, there was an application for permission pending before this Court. It was in those circumstances that Laddie J had to decide whether the requirement under r 6.5(4)(a) of the 1986 Rules was met - that is to say, whether the Names appeared to have counterclaims which equalled or exceeded the amount of the debts specified in the statutory demands. He recognised, correctly, that the effect of Cooke's J order, and his refusal of permission, was that that judge had decided, after eleven days of argument, that not only was the Names' case not properly arguable, but there was no real prospect of challenging that decision on an appeal. Nevertheless, Laddie J held that the requirement under r 6.5(4)(a) was met; and he set aside the statutory demands.
 In reaching that conclusion the judge reminded himself of the guidance given in para 12 ("Setting aside a Statutory Demand") of the Practice Direction: Insolvency Proceedings issued in 1999, which, as he held, had the force of law. Paragraphs 12.3 and 12.4 of that practice direction are in these terms:
"12.3 Where the statutory demand is based on a judgment or order, the Court will not at this stage go behind the judgment or order and inquire into the validity of the debt nor, as a general rule, will it adjourn the application to await the result of an application to set aside the judgment or order.
12.4 Where the debtor (a) claims to have a counterclaim, set off or cross demand (whether or not he could have raised it in the action in which the judgment or order was obtained) which equals or exceeds the amount of the debt or debts specified in the statutory demand or (b) disputes the debt (not being a debt subject to a judgment or order) the Court will normally set aside the statutory demand if, in its opinion, on the evidence there is a genuine triable issue."
 The argument before the judge had been directed, primarily, to the hurdle posed by the need to satisfy the court of "a genuine triable issue". On behalf of the Names it was said that, in circumstances where the counterclaim had already been rejected by a judge, all that was required was that the court addressing an application to set aside the statutory demand should be satisfied that there was "a serious appeal or appeal process being advanced seriously". On behalf of Lloyd's it was submitted that the effect of Cooke's J order was that there was no genuine triable issue; and that that would remain the position unless and until the Court of Appeal gave permission to appeal and allowed the appeal on a point of substance.
 The judge rejected the submission which had been advanced for Lloyd's. At para 62 of his judgment he said this:
"The question to ask at the set aside stage is whether the debtor has raised a genuine triable issue. The fact that at first instance a Judge has held the issue to be too insubstantial to be allowed to be pleaded is an important factor in deciding whether the issue is genuinely triable but it is not determinative. If an appeal process is on foot, the court must decide whether it is a real, as opposed to a frivolous appeal. Once again, the fact that the first instance Judge refuses permission to appeal is a factor to take into account in deciding whether the appeal is real, but it cannot be determinative."
He went on to say, at para 66 of his judgment, that it was necessary to take into account the fact that an application for permission to appeal had been lodged with the Court of Appeal and "to assess whether the appeal which the Names wish to pursue is a real bona fide and non-frivolous one". He pointed out, at para 67, that Lloyd's did not contend that, "taken as a whole, the appeal could be dismissed as frivolous, or other than real". So he held that the applications to set aside the statutory demands were entitled to succeed. He gave permission to appeal from his order.
 Since Laddie's J order of 18 July 2003 matters have moved on. The appeal from that order was listed for hearing before this Court immediately after the application for permission to appeal from Cooke's J order of 23 May 2003; and before the same constitution. So, we have not been in the position (as was Laddie J) of addressing the applications to set aside the statutory demands without knowing whether the application for permission to appeal from Cooke's J order would be granted. Nor, having granted that application (in part at least), are we in ignorance of the result of the appeal itself. The application for permission was listed with the appeal to follow if permission were granted; and we have heard and determined the appeal. The question whether Laddie J was right to make the order which he did in the circumstances in which he made it is now moot.
 Nevertheless, before addressing the question whether the statutory demands should now be set aside - in the light of our decision on the appeal from Cooke's J order - we think it appropriate to make three observations on the matters which were before Laddie J. First, we think that the judge was right to reject Lloyd's contention that the effect of Cooke's J order was determinative of the question whether there was a genuine triable issue. In particular, he was right to reject the submission that there could be no genuine triable issue unless and until this Court gave permission to appeal and allowed the appeal on a point of substance.
 Second, we do not find it helpful to pose the question in terms which require consideration whether the appeal which the applicant seeks to pursue against the rejection of his counterclaim is "real bona fide and non-frivolous". We are not at all surprised that counsel for Lloyd's did not feel able to argue before Laddie J that the Names' application for permission to appeal from the order of Cooke J should be dismissed as "frivolous" or as not "real" - if, by that, it was to be understood that the application was not pursued in good faith. If it is necessary to translate the concept of "genuine triable issue" into the context of an appeal, then it seems to us that the appropriate test is the one familiar under CPR 52.3(6)(a) and explained by this Court in Tanfern Ltd v Cameron MacDonald (Practice Note)  2 All ER 801,  1 WLR 1311, at para 21 - does the appeal have a realistic, as opposed to fanciful, prospect of success.
 Third, where a judge of the High Court has decided - say, on an application for summary judgment or on an application to amend - that the applicant's counterclaim has no prospect of success and has refused permission to appeal from his decision on the ground that an appeal would have no prospect of success, a judge sitting in the bankruptcy court should be slow to hold that the requirement in r 6.5(4)(a) of the Insolvency rr 1986 can be satisfied. We do not intend to suggest that the decision of the first judge precludes the bankruptcy judge from giving effect to his own, different, view - for the obvious reason that the bankruptcy judge cannot be required to ignore the possibility that this Court may take a different view from the first judge. But, unless the bankruptcy judge feels confident that this Court will take a different view and will give permission to appeal from the order of the first judge - on the ground, perhaps, that there has been a change in the law, or that some compelling fact or authority appears to have been overlooked - it seems to us that the bankruptcy judge should normally refuse to set aside a statutory demand under r 6.5(4)(a). We may add that, if the bankruptcy judge knows that there is an application for permission to appeal from the first judge pending before this Court, it is, of course, open to him (in a proper case) to give permission to appeal from his own order, with an indication that this Court may wish to hear that appeal at the same time as it hears the application for permission. In such a case he can postpone the presentation of a bankruptcy petition until after the hearing of the application for permission by an appropriate order under r 6.5(6) of the Insolvency Rules.
 We turn, now, to address the question whether the statutory demands should be set aside in the light of our decision on the application and appeal from Cooke's J order of 23 May 2003.
 As the parties will know, we have granted permission to appeal on the question whether s 14(3) of the Lloyd's Act 1982 can be 'read down', under s 3(1) of the Human Rights Act 1998, so as to affect the immunity from liability to damages which that section affords to Lloyd's in respect of claims after the date upon which the section came into force - which, affirming the decision of Cooke J, we have held to be 23 July 1982. But, in granting permission to appeal on that question, we have made it plain that we have not been persuaded that the Names ever had a real prospect of success. After hearing argument on the application for permission we were satisfied that the point was not arguable. As we said, that conclusion might well have led, in logic, to a decision to refuse permission to appeal. We granted permission because, in the very special circumstances of the Lloyd's litigation, we were satisfied that there was some other compelling reason why an appeal should be heard by this Court.
 The position, therefore, is that this Court has now held that the non-Scheduled Names (amongst whom are four of the respondents to this appeal) have no counterclaim against Lloyd's upon which they can rely as a ground for setting aside the statutory demands served upon them. We have refused leave to appeal to the House of Lords; as, in the light of our conclusion that the point under the Human Rights Act was not arguable, we were bound to do. It was submitted, correctly, that the respondents are entitled to petition the House for leave to appeal; and that, despite our own firm view, we should recognise the possibility that the House might take a different view. We do recognise that possibility; but the question which we have to decide is whether an appeal from this Court on that point has a realistic, as opposed to fanciful, prospect of success. It is pertinent, in that context, to have in mind that, in reaching the conclusion which we have, we have sought to follow two recent decisions of the House on the scope of art 6 of the Convention and the extent to which a court may have recourse to s 3(1) of the Human Rights Act 1998 to disturb vested rights and immunities. In the light of those decisions we cannot regard the point as open to doubt: we cannot regard an appeal as having a realistic prospect of success. It must follow that, in relation to those four respondents (Dr Cook, Mr Johnston, Mr Thomas-Everard and Mr Till), this appeal should be allowed.
 We were urged to take the view that the inevitable consequence of our decision to allow the appeal would be that bankruptcy orders would be made against these respondents; and that bankruptcy orders would lead, equally inevitably, to these respondents being denied the opportunity to pursue a petition for leave to appeal to the House of Lords. This, it was said, would lead to a violation of their art 6(1) Convention rights. There are, we think, formidable difficulties in sustaining that submission. But it is unnecessary for us to decide the question. Lloyd's are content not to press for bankruptcy orders until the fate of the respondents' petitions for leave to appeal is known, provided that they can establish a commencement date for any bankruptcy which may ensue by presenting bankruptcy petitions forthwith. Accordingly the parties have agreed that, upon Dr Cook, Mr Johnston and Mr Till (described as "the Category 1 respondents") undertaking to pursue their petitions for leave to appeal from our order dismissing the appeal from the order of Cooke J (and any subsequent appeal, if the House of Lords give leave) with the utmost expedition, Lloyd's should be permitted to present bankruptcy petitions against them forthwith on terms that all proceedings under the bankruptcy petitions (including advertisement) be stayed pending the final determination by the House of Lords of the Category 1 respondents' petitions for leave to appeal. We are content to make an order in those terms. Mr Thomas-Everard should have the opportunity to give a similar undertaking and, thereupon, be included as a Category 1 respondent. There will be liberty to any party to apply to the bankruptcy judge to lift the stay in the event of a material change in circumstances.
 We turn now to consider the position of the other three respondents ("the Category 2 respondents") . They are Names who are, or may be, able to bring themselves within the 'window' to which we have referred earlier in this judgment. In relation to the Category 2 respondents, the question on this appeal is not whether they appear to have counterclaims; but whether the counterclaims which they may have can equal or exceed the amounts demanded from them by the statutory demands.
 That was not a question which Laddie J found it necessary to address. These respondents, in common with the Category 1 respondents, were relying before him on the argument that s 14(3) of the Lloyd's Act could be read down under s 3(1) of the Human Rights Act 1998. If that argument had been successful they would have sought to rely on claims arising in years after 1982; and it seems to have been accepted that, if reliance could be placed on claims in all years prior to 1993, the aggregate amount of those claims would exceed the amount of the Equitas premium in respect of which Lloyd's had obtained its judgment. But, if Category 2 respondents can rely only on claims within the window, it is not self-evident (and it is strongly denied by Lloyd's) that their claims will equal or exceed the amounts demanded under the statutory demands.
 Section 4B of the Limitation Act 1980 excludes claims for damage which is attributable only to acts or omissions which occurred before the beginning of the fifteen year period which ends on the date of the issue of the writ against (or by) the Name in question. So far as material, s 14B(1) is in these terms:
"An action for damages for negligence . . . shall not be brought after the expiration of fifteen years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission -
(a) which is alleged to constitute negligence; and
(b) to which the damage in respect of which damages are claimed is alleged to be attributable (in whole or in part)."
In the case of a Name against whom a writ was issued by Lloyd's on 11 October 1996 (which is the earliest date on which writs were issued against any of the Category 2 respondents) the relevant date, in the context of s 14B(1) of the 1980 Act, is 11 October 1981. There is one Category 2 respondent (Mrs Bowman) for whom the relevant date is a little later than that; but we will take 11 October 1981 as a convenient date by reference to which to address the effect of s 14B. The section limits claims to those where the loss in respect of which damages are claimed is said to be attributable to an act (for example, the issue of a brochure) or to an omission (for example, the failure to correct a statement in a brochure) which occurred after 11 October 1981.
 In relation to Names who joined Lloyd's before 1982 - and two of the Category 2 respondents (Mr Drysdale and Mr Woyka) joined before that year - the brochure (if any) on which they relied when deciding to join must have been issued before 11 October 1981. So no claim can be brought on the basis of loss attributable to the decision to join. Indeed, no claim can be brought on the basis of any decision taken before 11 October 1981 unless the loss can be attributed, also, to a decision taken after that date. It is said by Lloyd's that that must exclude any decision not to resign from Lloyd's at the end of 1981; on the ground that a decision to resign would need to have been taken at least four months before the year end. There seems to us to be force in that point. That excludes claims based on a decision to join Lloyd's in any year earlier than 1982; and also excludes claims based on a decision not to resign from Lloyd's before the 1982 year. It would not exclude a claim - if such a claim could be advanced on the facts - based on a decision to join Lloyd's from 1 January 1982; provided, of course, that the claimant could show that he relied on a statement made to him after 11 October 1981 or, perhaps, that he relied, after 11 October 1981, on a statement made to him before that date. In the latter case, he would have to assert either that the statement made before 11 October 1981 constituted a continuing representation - which continued after 11 October 1981 - or that Lloyd's was under a duty, after 11 October 1981, to correct the statement made before that date.
 We have said that, in the case of a Name who joined Lloyd's before 1982, no claim can be based on the decision to join; and that there is force in the contention that no claim can be brought on the basis of the decision not to resign. But it may be said that decisions were made, after 11 October 1981, to join, or to remain as members of, syndicates for the 1982 year; and that those decisions were themselves made on the basis of a representation made after 11 October 1981, or on the basis of an earlier representation continuing after 11 October 1981, or by reason of the failure after 11 October 1981 to correct a representation made earlier. We do not think that the possibility of such claims can be ruled out.
 It is, of course, not enough to show that a relevant decision was made after 11 October 1981 in reliance on a representation which was itself made, or continuing, or not corrected, after that date. It is necessary for a Name to show, also, that the decision, made in reliance on the representation, caused loss which was first suffered before 23 July 1982. A claim for loss first suffered after 23 July 1982 is barred by s 14(3) of the Lloyd's Act. In practice, we think, the need to show loss suffered before 23 July 1982 is likely to mean that the loss must be attributable to membership of a syndicate in 1982. But we do not rule out the possibility that those who were members of syndicates in 1982 may have become liable for losses sustained in earlier years; and may have remained liable for losses which were not quantified until later years.
 We recognise that a Category 2 respondent who seeks to establish a claim for an amount which equals or exceeds the amount demanded of him under the statutory demand is likely to face formidable difficulties on the facts. But it is impossible to say whether any or each of the Category 2 respondents has any real prospect of overcoming those difficulties without seeing how he puts his case. The material before us on this appeal does not enable us to hold, in relation to the Category 2 respondents, that the requirement in r 6.5(4)(a) of the Insolvency rr 1986 is or is not satisfied.
 In other circumstances the fact that the court was unable to hold that the requirement in r 6.5(4)(a) of the 1986 Rules was met would lead to a refusal to set aside a statutory demand. The debtor would have failed to establish the ground upon which he relied. But this is not a usual case; not least because the need to address this point has first arisen in this Court as a consequence of our decision in the appeal from Cooke's J order. In those circumstances we think that the appropriate order to make is an order allowing the appeal from the order of Laddie J, in relation to the Category 2 respondents as well as in relation to the Category 1 respondents and on the same terms; but subject to the proviso that a category 2 respondent should have the opportunity to put before Cooke J, at the hearing to determine the matters which he has already reserved to himself, a properly particularised pleading which supports a claim for damage equal to or in excess of the amount demanded in the relevant statutory demand and identifies the date on which it is said loss was first suffered. We will invite counsel to agree an order which contains the necessary directions for that purpose. We emphasise that, in the case of Category 2 respondents, bankruptcy petitions are not to be presented for so long as they comply with those directions; and, if they do so comply, until after the judge has ruled on the matters before him. If the judge allows an amendment to plead a claim for damage equal to or in excess of the amount demanded in the relevant statutory demand, then the statutory demand is to be set aside.
Appeal allowed in part; permission to appeal refused.