Re Barrell Enterprises

JurisdictionEngland & Wales
Judgment Date26 July 1972
Judgment citation (vLex)[1972] EWCA Civ J0726-5
CourtCourt of Appeal (Civil Division)
Date26 July 1972
In the Matter of Barrell Enterprises
No. 001734 of 1970
and
In the Matter of Barwell Investments (Abergavenky)
No. 001727 of 1970
and
In the Matter of Revilo Property Developments Limited
No. 001733 of 1970
and
In the Matter of Life Guard Finance
No. 001729 of 1970
and
In the Matter of Life Guard Finance (Commercial)
No. 001732 of 1970
and
In the Matter of Life Guard Facilities
No. 001731 of 1970
and
In the Matter of Barrell Bros. (Retail)
No. 001730 of 1970
and
In the Matter of Barrell Bros. (Transport)
No. 001728 of 1970
and
In the Matter of the Companies Act, 1948

[1972] EWCA Civ J0726-5

Before:

Lord Justice Russell

Lord Justice Karminski and

Lord Justice Cairns

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice

Chancery Division

Companies Court

(Mr. Justice Brightman)

MISS M. L. BARRELL (Appellant) appeared in person,

MR. J. M. CHADWICK (instructed "by the Solicitor, Department of Trade & Industry) appeared on "behalf of the Applicant (Respondent)

MR. L. SWIFT (instructed by the Official Solicitor) appeared as amicus curiae, to support Miss Barren's appeal on the question of release.

1

LORD JUSTICE RUSSELL The judgment I am about to deliver is the judgment of the Court.

2

In February 1971 the appellant was ordered in the compulsory winding up of a group of companies with which she had been much concerned as director and/or liquidator in voluntary winding up to hand over to the Official Receiver as liquidator of those companies a number of documents belonging to the companies which she stated in her private examination were then in her possession. They included a number of executed blank transfers of Australian mining shares with certificates from Australian stock exchanges that the corresponding share certificates had been deposited with them. The shares were of considerable value and the companies or some of them had paid for these documents of title to 'the shares.

3

That order has never been fully complied with. In October 1971 the Vice-Chancellor ordered that she be committed to prison for her contempt in failing to hand over certain of the documents scheduled to the order, including in particular these certificated transfers. The committal was stayed by the Vice-Chancellor pending an appeal to this Court. That appeal was heard in December 1971, (the court consisting of myself and Lords Justices Phillimore and Buckley) and judgments were delivered dismissing the appeal after a full hearing at which Miss Barren appeared in person and the Official Receiver was represented by counsel. As a result of a suggestion that she might if remaining at liberty be able to raise funds to satisfy the Official Receiver the imprisonment which would otherwise have resulted automatically from the dismissal of the appeal was in effect postponed by this Court to give Miss Barrell an opportunity to go back tothe Vice-Chancellor on the first day of the next sittings to ask him to reconsider the question of actual imprisonment. In the result no money was forthcoming, the Vice-Chancellor did not change his mind in this regard, and Miss Barrell went to prison on 12th January 1972. There have been since then a number of applications by her to the Vice-Chancellor for release which have not succeeded. Her next step was by motion, which in the event was heard by Mr. Justice Bright man to set aside the original order of the Vice-Chancellor on the ground that fresh evidence had emerged since the original hearing by the Vice-Chancellor and the hearing and decision by this Court of the appeal there from. Included in the motion was an application in any event for discharge from custody. Mr. Justice Bright man concluded that he had jurisdiction to set aside the order for committal by the Vice-Chancellor on the basis of fresh evidence, but declined to do so on considering it": he also refused to rocker her release. From these decisions Miss Barrell appealed to this Court; at the same time she moved this Court again by way of appeal from the Vice-Chancellor's original order, and the two appeals came on together for hearing. Miss Barrell again appeared in person, the Official Receiver by counsel, and at the request of the Court counsel was instructed by the. Official Solicitor as amicus curiae and to support Miss Barren's appeal on the question of release.

4

Now as to the attempted fresh appeal from the original order of the Vice-Chancellor it is plain that this cannot lie: the order had already been the subject of an appeal which was dismissed after a full hearing. For some reason however it appears that the order of this Court dismissing the appeal hadnot "been passed and entered. "c indicated that if there might prove to "be any point on the original appeal not available on the appeal from Mr. Justice Bright man we would be prepared to consider whether Miss Barrell should be allowed to be treated as seeking to continue argument on the original appeal. For reasons which we later give we are of opinion that it would not be proper to allow the appeal to be reopened. Further, for reasons which we later give, we are of opinion that f-. Mr. Justice Bright man had no jurisdiction to entertain an application to set aside the original order of the Vice-Chancellor, though of course he had jurisdiction to entertain an application for discharge. Consequently the. only matter which in strictness is for our decision in this appeal in the question of hoi- discharge from custody. At the conclusion of the hearing our reasons, but having formed the view that Miss Barrell should be now released, then ordered her immediate. to release.

5

Although the question of her release is the only matter for decision, having regard to our- vies on jurisdiction we propose to touch shortly on the. points that miss Ear re 11 sought as fresh points to raise, neither of which in our view were sound points. To put them in their true perspective would require a long statement of the history of the: matter. But there have already teen not less than three long judgments (one in this Court) discussing the history and we do not propose to add another. The first of these points was that when the matter was before the Vice-Chancellor and tills Court it was thought that there were missing more documents than in fact were missing - which were only some 8 to 10: the Vice-Chancellor in part based his conclusion on the fact that he could not accept that the number that he thoughtwere missing could have been overlooked when the office premises of the Companies were searched by the relevant officials: therefore, said Miss Barrell, he based his conclusion at least in part upon a misconception which had been shown to be such only after the appeal from his order had been dismissed. This argument did not find favour with Mr. Justice Bright man, nor does it with us. In our view the Vice-Chancellor would have rightly arrived at the same conclusion in the matter had he been aware of the actual bulk or number of the documents in question. It is perhaps not wholly irrelevant to notice that the correct state of affairs in this regard was made known to the Vice-Chancellor on another occasion when the matter of Miss Barren's contempt was before him, though not on this aspect of the case, and it certainly never struck him that this made all the, or any, difference to the propriety of the basic order.

6

The second of these points was a suggestion that in arriving at his conclusion as to contempt, the Vice-Chancellor overlooked an aspect of the onus being upon those who assert contempt. The relevant suggestion was that it was necessary that the Official Receiver should satisfy the Court that the relevant documents were not on "the Companies' premises when his officials visited them and removed documents and furnishings on 22nd March 1971. The Vice-Chancellor was satisfied that they were not among the documents removed on that occasion - which miss Barrell had before the Vice-Chancellor sought to suggest they were, but before Mr. Justice Bright man no longer so suggested. The point she sought to make was that they might have been there on the occasion of that visit and have been overlooked and later abstracted by some person unknown, or have been in items offurniture taken into the store of Mr. Thomas and there been mislaid. The various possibilities had been canvassed, but the point now technically put was that when the Official Receiver took possession of the premises on 22nd March he necessarily as a matter of law took possession of all the contents including all the documents therein: that any documents that were then there were thus taken out of the possession and control of Miss Barrell, who could not thereafter willfully disobey the order to hand over any documents that were there. In those circumstances, the visit of the officials being without notice to hiss Barrell, she argued that it was for the Official Receiver to satisfy the Court that the missing documents were not there on 22nd March when possession was taken of the premises. ' think that this is a false point. Miss Barren's story war, that they were there -moved by her on 21st March from a fireproof box to a filing cabinet in a different room. It is clear that the Vice-Chancellor and this Court considered that beyond reasonable doubt this wan not so, and that when the officials took possession on 22nd March they did not in any sense take possession of the mis sing documents.

7

Accordingly even if we had considered that Mr. Justice had jurisdiction to review the original finding of the Vice-Chancellor, or that miss Barrell should be entitled to pursue her original appeal from the Vice-Chancellor on the ground that the order dismissing it had not been drawn up, do not think her arguments were valid.

8

We turn now to the question whether in any event it would have been open to Miss Barrell to continue with fresh argument her...

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