Barclays Bank Ltd v Cole
| Jurisdiction | England & Wales |
| Judge | The Master Of The Rolls,Lord Justice Diplock,Lord Justice Russell |
| Judgment Date | 24 October 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1024-4 |
| Court | Court of Appeal |
| Date | 24 October 1966 |
[1966] EWCA Civ J1024-4
The Master Of The Rolls
(Lord Denning)
Lord Justice Diplock and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Blain
Mr Ashe Lincoln, Q. C. and Mr G. Owen (instructed by Messrs Lincoln & Lincoln) appeared as Counsel for the Appellant.
Mr D. Hunter (instructed by Messrs Durrant, Cooper & Hambling) appeared as Counsel for the Respondents.
On the 27th February, 1964, there was a bank raid in the New Kent Road. Men went into Barclays Bank. They held up the staff and went off with £52,250. Two days later Frederick Cole paid £6,200 into another branch at Bow. He had an account there. This £6,200 was part of the proceeds of the robbery. Later he was indicted at the Central Criminal Court with the robbery. He was ready to plead guilty to receiving the £6,200 knowing it to have been stolen but he denied the robbery. He denied taking part in the raid. The prosecution did not accept his plea of receiving but went on with the charge of robbery. It was first tried early in May 1964 before Mr. Justice Widgery and a. It took a week. The disagreed. It was next tried early in June 1964, before Mr. Justice Lawton and a. It took seven days. The found him guilty and he was sentenced to 15 years imprisonment. He appealed to the Court of Criminal Appeal. His appeal was rejected.
Barclays Bank found that Coles had £16,076.6s.5d. standing to his credit in their books. £6,200 of it was the proceeds of the robbery. The remaining £10,000 came from elsewhere. So on the 8th April, 1964, they brought an action against him for the £52,250, money had and received to their use and an injunction to prevent him from dealing with the £16,076.16s.5d. The statement of claim contains this paragraph: "(1) On 22nd February, 1964, the defendant wrongfully entered the New Kent Road branch of the plaintiff bank, and there feloniously robbed one Frederick Woodward, the plaintiffs servant or agent, of the sum of £52,250, the property of the plaintiffs". Cole in his defence says: "The defendant denies each and every allegation contained in paragraph 1 of the statement of claim". So Cole denies the robbery and is determined to have it tried again. He wishes to canvass again his guilt or innocence, but this time before a in a civil case. There is too much of this sort of thing going on: Hinds,Goody, Rondel and now Cole. It is made possible by the unfortunate decision of this Court in Hollington v. Hewthorn, 1943 King's Bench, p. 587, where it was held that a conviction in a criminal court cannot be used as evidence, not even prima facie evidence, in a civil case. I hope it will soon be altered. See what it means here. In order to be able to bring this civil action Barclays Bank had first to mace sure that Cole was prosecuted in the criminal court: see Smith v. Selwyn, 1914, 3 King's Bench, p. 98. Now after seeing him duly prosecuted and convicted, they are asked to prove his guilt allover again in this civil suit.
In the United States of America in similar circumstances it has recently been held that the conviction is not only receivable but is conclusive evidence: see Hurst Trustee v. Strom (1965) 416 Pennsylvania Reports, p. 493. But here in England at present it is not even admissible evidence.
So we must accept that Cole is entitled to canvass his guilt or innocence once again. But is he entitled to have it tried by a? Mr. Ashe Lincoln claims the right to a because "a charge of fraud against that party" is in issue within Section 6 of the Administration of Justice (Miscellaneous Provisions) Act 1933. Mr. Ashe Lincoln says that a charge of robbery is a charge of fraud. Robbery includes stealing, he says, and stealing includes fraud. I cannot accept this argument. "Fraud" in ordinary speech means the using of false representations to obtain an in just advantage. See the definition in the Shorter Oxford English Dictionary. Likewise in law "fraud" is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false: see Derry v. Peek (1889) 14 Appeal Cases at p. 374 by Lord Herschell. In any case "fraud" involves a false representation. Robbery does not. It involves violence, not fraud. If a man were convicted of murder or rape, and, after conviction, were sued ina civil case for damages, he would not be entitled as of right to a. Nor is he on a charge of robbery.
The next question is whether, as a matter of discretion, a should be ordered. Mr. Ashe Lincoln referred to a passage in Ward v. James, 1965, 2 Weekly Law Reports, at p. 466, where I said: "Whenever a man is on trial for serious crime, or when in a civil case a man's honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by has no equal". That has no application where a man has already been tried and convicted. His honour and integrity is no longer at stake. It has gone altogether.
This case would be quite unsuitable for a. The issues will inevitably involve consideration of all that the witnesses said on the criminal trial and hundreds of pages of transcript. A Judge is much better for it.
I think that the Master and the Judge were quite right to refuse trial by. I would dismiss this appeal.
If a charge of robbery against a party to an action to be tried in the Queen's Bench Division is a "charge of fraud" against him, Cole is entitled to a under Section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933. If it is not, the ordering of a trial by instead of trial by Judge alone was a matter on which Mr. Justice Blain was required to exercise his discretion.
Robbery is not included in the ordinary meaning of the word "fraud" - as the Oxford Dictionary confirms. But the section is dealing with procedure in an action in the Queen's Bunch Division. If the expression "a charge of fraud" has a special meaning in this context as a terra of art, that special moaning must be ascribed to it. I think it has. For at least one hundred years (See Bullen & Leake, 3rd Edition) "fraud" in civil actions at...
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