On 22 October 2025, ICC Judge Burton handed down judgment In the matter of Siobhain Crosbie [2025] EWHC 2917 (Ch). The Petitioning Creditor, Caroline Ley, had presented a bankruptcy petition against Ms Crosbie for £237,753.78 arising from an unpaid, post-trial, High Court Judgment debt and costs order in libel and harassment.
Ms Crosbie sought to resist the petition on the basis that there had been a “miscarriage of justice” at trial caused by the negligence of her direct access barrister, and asked the Insolvency Court to ‘look behind’ the Judgment.
Background
On 1 November 2023, Mr Justice Julian Knowles handed down Judgment in Crosbie v Ley [2023] EWHC 2626 (KB), dismissing the Claimant, Siobhain Crosbie’s claim for passing off as totally without merit (and finding that the statement of truth on the particulars of claim should not have been signed), and entering judgment for the Defendant, Caroline Ley, in her counterclaims against Ms Crosbie for libel, and harassment, awarding her damages of £75,000. Our blog explaining the background to the claim and the trial Judgment can be found here.
On 9 November 2023, Knowles J ordered Ms Crosbie, amongst other things, to pay Ms Ley’s costs of the action on the indemnity basis, to pay interest on her costs from 6 November 2021 (two years prior to the trial Judgment) at a rate of 10% per annum, and to pay make an interim payment on account of costs of over £155,000.
Ms Crosbie never made the payment on account, or indeed any payment. Nor did she engage with the costs orders more generally. She did seek permission to appeal Knowles J’s Judgment from the Court of Appeal, and that application was refused on 7 March 2024, with Lord Justice Warby concluding, with detailed reasons, that none of the grounds she had advanced had any real prospect of success.
Ms Ley presented the bankruptcy petition on 12 December 2024, and the matter was initially due to be heard on 4 February 2025. On that date, Ms Crosbie, having attended Court as a litigant-in-person, was afforded the assistance of specialist insolvency Counsel through Advocate/the Bankruptcy Representation Scheme. Ms Crosbie’s pro bono Counsel, Ms Powers, told the Court that Ms Crosbie’s position was that the outcome of the 2023 trial was a miscarriage of justice arising from the alleged negligence of her trial Counsel but that, having only received instructions that morning, she could not advance the position further that day. Chief ICC Judge Briggs observed that in extraordinary circumstances the Insolvency Court can ‘look behind’ a judgment, and adjourned the matter for the Court to determine whether there was a triable issue as to whether it should do so in this case.
The matter came back before ICC Judge Burton on 9 July 2025.
The challenge to the petition
In order for a court to make an individual bankrupt, the debt on which the petition is based upon must be free of dispute. A judgment debt is typically prima facie evidence that a creditor is owed sums by the debtor. In Dawodu v American Express Bank [2001] BPIR 983, Etherton J explained that in order for the bankruptcy court to investigate a judgment debt, in the absence of an outstanding appeal or application to set aside, there must be some evidence of fraud, collusion or miscarriage of justice. The court will then determine whether, in the event that there had been a properly conducted judicial process, it would have been found, or very likely would have been found, that nothing was due to the claimant. In such circumstances, the court can look behind the debt, even where the debtor has unsuccessfully applied to set aside the judgment, and even where the outcome has been affirmed by the Court of Appeal.
At the hearing on 9 July 2025, Ms Crosbie’s barrister argued that her opposition to the petition on the basis of the alleged negligence of her trial Counsel was reasonably arguable, and that there should be an even lengthier substantive hearing in which the Court could conduct a full investigation of the Judgment debt. She drew the Court’s attention to various matters concerning the alleged circumstances in which Ms Crosbie instructed her trial Counsel, and as to his alleged conduct of the trial. For example, it was alleged that Ms Crosbie’s trial Counsel was verbally abusive to her, repeatedly ignored her instructions, failed to address key evidence in cross-examination, spent time during the trial looking at material for other cases, and ignored Ms Crosbie’s request to review her own written closing submissions. Of course, the barrister in question was not present at the hearing or on notice of these allegations being made in this forum. The hearing proceeded on the assumption that Ms Crosbie’s criticisms of him were well-founded, but ICC Judge Burton made clear that she was not making any findings to that effect. The submissions made on behalf of Ms Crosbie did not end there, however. Various observations were also made of the trial Judgment. For example, it was noted that the Judgment devoted nine pages to the cross-examination of Ms Crosbie, and only four pages to the cross-examination of Ms Ley. It was also suggested that Knowles J had, on the face of it, made incorrect findings of fact.
Following the hearing of 9 July 2025, the matter was adjourned again – to 22 October 2025 – for the handing down of ICC Judge Burton’s ex tempore Judgment. Ahead of that hearing, Ms Crosbie’s Counsel served a statement of pro bono costs (pursuant to section 194 of the Legal Servies Act 1997 and CPR 46.7, in circumstances where a party is represented on a pro bono basis, the Court can award costs against their opponent, but to be paid to a prescribed charity.) In addition to Ms Powers’ assistance, Ms Crosbie had apparently also received pro bono support from the BVI office of global firm Holman Fenwick Willan. The effect of this was that, in the event that Ms Crosbie succeeded in resisting the petition, she would be inviting the Court to order Ms Ley to pay thousands of pounds in adverse costs.
Decision
ICC Judge Burton found, on the facts, that there was not a triable issue which might allow the bankruptcy court to go behind the Judgment debt; Ms Crosbie had no realistic prospect of persuading the court that it should do so.
In ICC Judge Burton’s judgment, a ‘‘quite exceptional level of incompetence’’ would need to arise for the Insolvency Court to be satisfied that there is a real prospect of it being persuaded to look behind another Court’s judgment.
Judge Burton noted that Ms Crosbie had not suggested any judicial bias or fundamental procedural unfairness on the part of Knowles J. Equally, whilst Ms Crosbie was critical of her trial Counsel’s cross-examination of Ms Ley, she could not suggest that he had obstructed her from giving her own evidence, which was before the Court (having been prepared prior to trial Counsel’s instruction) and had been tested, quite properly, by cross-examination. Knowles J’s Judgment was 90 pages long and addressed Ms Crosbie’s case in detail; his conclusions and reasoning were very clearly set out. His finding that Ms Crosbie’s claim had been ‘totally without merit’, meant that it was bound to fail; there was no rational basis for it. It was not a marginal case. Equally, the defamatory tendency of Ms Crosbie’s various publications about Ms Ley had been ‘self-evident’, and the accusations contained within those publications had been ‘groundless’. Although Ms Crosbie’s trial Counsel had failed to make submissions as to a theoretical public interest defence to the defamation counterclaim, Knowles J had considered the defence anyway, and concluded that it would have failed. He had not been primarily influenced by submissions, or the lack of them, but by Ms Crosbie’s credibility. It was the untruths told by Ms Crosbie that had led him to reject her evidence. These were the words and findings of an experienced Judge of the High Court. Judge Burton did not consider that the alleged errant findings of fact were made out on their face.
Accordingly, Ms Crosbie’s opposition to the petition was rejected, and a bankruptcy order was made against her following the handing down of the Judgement on 22 October 2025.
Comment
This case is helpful in building upon the existing authority as to the circumstances where the bankruptcy court will consider if it is able to look through a Judgment debt, where there is an allegation of miscarriage of justice (and particularly one founded upon the alleged negligence of legal representatives).
With that said, the consequence of Ms Crosbie’s argument in this case was that Ms Ley – who had already endured years of litigation at huge cost, which will likely never be repaid, on top of the defamation and harassment that she was subjected to by Ms Crosbie in the first place – had to pay for representation at two additional hearings, and had to endure the suggestion, in effect, that the underlying matter be tried all over again in the Insolvency Court. Having been a party to a trial in the High Court, it is not difficult to imagine the impact of having the resulting, emphatic, 90-page Judgment superficially picked at in another forum, and the Court appearing – if only momentarily – to entertain that. The fact that Ms Crosbie was able to call upon what would otherwise have been very expensive legal representation to aid her to run those arguments free of charge, and with the threat of seeking a costs order against Ms Ley, was inevitably all the more galling. The possibility of insolvency proceedings is often the only realistic leverage that one has against impecunious – or supposedly impecunious – opponents in civil proceedings. The thought that parties can try to use such proceedings as a platform to re-litigate the underlying dispute, will be a chilling one to many. It is hardly uncommon for defeated litigants to claim that they are the victims of fraud, collusion, and/or miscarriage of justice. As all litigation lawyers know, such allegations are virtually the stock-in-trade of vexatious litigants. Hopefully, the Judgment in this case will more readily cut such suggestions off at the pass in future, and not serve to encourage misuse of the Court’s process.
Ms Ley was represented by Max Campbell and Vishalee Amin of Brett Wilson. Ahmed Elhusseiny of Outer Temple was instructed in the insolvency proceedings and Gervase de Wilde of 5RB in the libel proceedings.
This post originally appeared on the Brett Wilson Media and Communications Blog and is reproduced with permission and thanks
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