Cooke v Dunbar Assets Plc

Cooke v Dunbar Assets Plc

The court has discretion to order that costs of an unsuccessful bankruptcy appeal be paid by the appellant personally, and to the extent not paid, treated as an expense of the bankruptcy. Rule 12.2 does not preclude personal liability for costs, and the statutory scheme does not restrict the court's power to make alternative orders. The general rule that costs follow the event applies, protecting the bankruptcy estate from unmeritorious appeals.

Parties
Appellant: Brian Herbert Cooke; Respondent: Dunbar Assets PLC
Jurisdiction
England and Wales
Judgment Date
29 July 2016
Procedural Posture
Bankruptcy Appeal / Post Judgment Costs Determination
Outcome
Costs order made against appellant with alternative provision.
Legal Topics
Costs Orders, Priority of Debts, Appeals in Bankruptcy, Expenses of Bankruptcy, Provable Debts
Insolvency Bankruptcy Civil Procedure Costs Orders Priority of Debts Appeals in Bankruptcy Expenses of Bankruptcy Provable Debts

Case Brief

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Parties

Brian Herbert Cooke

Appellant

Dunbar Assets PLC

Respondent

Procedural Posture

Bankruptcy Appeal / Post Judgment Costs Determination

Legal Issues

  1. 1 Under which category should the costs of an unsuccessful bankruptcy appeal be allocated: as an expense of the bankruptcy, a provable debt, or a personal liability?
  2. 2 Does Rule 12.2 of the Insolvency Rules 1986 preclude the court from making a costs order against the appellant personally?
  3. 3 Is the court's discretion to allocate costs affected by the statutory scheme and recent case law?

Ratio Decidendi

The court has discretion to order that costs of an unsuccessful bankruptcy appeal be paid by the appellant personally, and to the extent not paid, treated as an expense of the bankruptcy. Rule 12.2 does not preclude personal liability for costs, and the statutory scheme does not restrict the court's power to make alternative orders. The general rule that costs follow the event applies, protecting the bankruptcy estate from unmeritorious appeals.

Court Disposition

Costs order made against appellant with alternative provision.

Orders

  • Dunbar’s costs of the appeal shall be paid by Mr Cooke, to be assessed on the standard basis.
  • To the extent costs are not paid by Mr Cooke, they may be treated as an expense of Mr Cooke’s bankruptcy.