Debtor (No. 472 of 1950), Re. ex parte Swirsky
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE ROMER,LORD JUSTICE ORMEROD |
| Judgment Date | 03 February 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0203-2 |
| Court | Court of Appeal |
| Date | 03 February 1958 |
[1958] EWCA Civ J0203-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Jenkins,
Lord Justice Romer,
Lord Justice Ormerod
In the Matter of Bartlett Norman and Turn
Separate Estate of William Thomas Norman, a bankrupt.
MR. NEIL McKINNON. Q.C. and Mr. M.O'C. STRANDERS, instructed by Messrs, Bell & Ackroyd, appeared for the Appellant (Applicant).
MR. MUIR V.S. HUNTER, instructed by Messrs Tarry, Sherlock & King. appeared for the Respondent (Respondent).
This is an appeal from an Order of Registrar Bowyer dated the 31st July, 1957, whereby he refused to set aside as oppressive, frivolous, vexatious and an abuse of the process of the court a summons issued against the appellant, Mr. Swirsky, who is a solicitor, under Section 25 of the Bankruptcy Act, 1914 in the bankruptcy of one Norman.
It will be convenient, I think, next to refer to Section 25 of the Act. Section 25 provides, by sub-section (1) "The Court may, on the application Of the official receiver or trustee, at any time after a receiving order has been made against a debtor, summon before it the debtor or his wife, or any person known or suspected to have in his possession any of the estate or effects belonging to the debtor, or supposed to be indebted to the debtor, or any person whom the court may been capable of giving information respecting the debtor, his dealings or property, and the court nay retire any such person to produce any documents in his custody or power relating to the debtor, his dealings or property".
There are various ancillary provisions to which I do not think it necessary to refer.
The particular matter to which the summons was directed was the purchase of "certain land at Denhan Bucks comprised in two contracts both dated the 12th June, 1946" that, I think, is clearly a clerical error for "June, 1947" – "and made between Willmot Pendleton and Horace James Hewlitt of the first part Suburban Park Estates Limited of the second part and the bankrupt William Thomas Norman of the third part". The appellant's concern in these transaction was that; as will appear in a moment, he in fact entered into the two contracts as attorney for the debtor.
The grounds on which the summons its said to have been vexatious, an abuse of the process of the court, oppressive and frivolous are derived from certain other proceedings which were brought by the debtor against the appellant and after the debtor's bankruptcy were continued by the Official Receiver as Trustee in the bankruptcy.
It appears that the appellant during the period from the 12th March, 1947, to the 29th November, 1947, acted as attorney to and solicitor of the debtor, who, unfortunately, had been sentenced to a term of imprisonment for some offence or offences under the Prevention of Fraud (Investments) Act. At the conclusion of his sentence the debtor revoked the power of attorney under which the appellant had been acting and he also determined his retainer of the appellant as his solicitor. Apparently the appellant while he was attorney and solicitor of the debtor carried out various transactions concerning land and in particular entered into the two contracts to which I have referred. The appellant having thus ceased to act as solicitor and attorney to the debtor, the debtor conceived that he was entitled to an account against the appellant. The debtor accordingly towards the end of the year 1947 commenced proceedings against the appellant under Order 52, Rule 25.
It will be convenient next to refer to that rule It is headed "Account by solicitor", and it provides: "Where the relationship of solicitor and client exists, or has existed, a summons may be issued by the client or his representatives for the delivery of a cash account, or the payment of moneys, or the delivery of securities, and the court or a judge may from time to time order the respondent to deliver to the applicant a list of the moneys or securities which he has in his custody or control on behalf of the applicant, or to bring into court the whole, or any part of the same, within such time as the court or a judge may order In the event of the respondent alleging that he has a claim for costs, the court or judge may make such provision for the taxation and the payment or security thereof or the protection of the respondent's lien (if any) as the court or judge may think fit."
On the application of the debtor under that provision, an order was made by Master Grundy on the 13th Be December, 1948. That order is act on page 35 of the documents. It was thereby ordered "that the said solicitor do within twenty-eight days from the service of this order, deliver to William Thomas Norman the applicant the hills of costs in all causes and matters wherein he has been concerned for the said William Thomas Norman and at the Game time deliver to the said applicant the cash account showing ell monies received by him for or on account of or paid on behalf of said applicant and to pay to the said applicant the amount due from him. And it is further ordered that the said solicitor do deliver up to the applicant all deeds bookspapars and writings in his possession custody or power belonging to the applicant"; and liberty to apply was reserved Go that order It appears that the appellant did deliver an account of a sort and certain bills of costs, end handed over certain documents.
It Is to be observed that as early as the 20th October, 1949, the appellant was writing to, I think, the debtor's then solicitors in these terms: "with reference to our telephone conversation this morning in regard to the land at Denham Green, I would confirm that I did not receive any money in respect of this property on behalf of your client" That indicates that from an early stage in the proceedings the debtor was claiming Information as to the matter of the land at Denham Green, and the appellant was contesting his right to such information.
On the 18th September, 1950, a receiving order was made against the debtor and he was adjudicated bankrupt on the 24th October, 1950, and in due course the official receiver became his trustee in bankruptcy. On the 15th December, 1953, the trustee applied to be substituted for the debtor as applicant in the proceedings under Order 52, Rule 25, and the order for his substitution was made on the 7th January, 1954. Following upon that, the trustee, on the 8th January, gave notice to the appellant of his intention to proceed with the application under Order 52, Rule 25, and to press for compliance with the order.
On the 15th October, 1954 trustee applied for a further order as to accounts and so forth, That application came before Master Baker on the 22nd October, 1954, and the form of the order he made was this: "It is ordered that the respondent George Swirsky having failed to comply with the order Made against him herein on the 13th December, 1948 he do deliver to the applicant the trustee of the property of william Thomas Norman a bankrupt within 21 days after service of this order a full account of all monies received or paid by him on behalf of the said william Thomas Norman, such account to be verified by affidavit and to deal with all matters placed in the hands of the said George Swirsky by the said William Thomas Norman. And that the costs of this application together with the costs reserved by the order herein dated 7th January, be the applicant's in any event."
The appellant appealed from that order, and his appeal came before Mr. Justice slade, in the first instance on the 29th October, 1954. The learned judge's order of that date recited the order under appeal and ordered that "the said order of Master Baker be varied by directing that the account therein referred to, be delivered within three calendar months of this order, such account to be verified by affidavit" Then it was further ordered "that the said notice of appeal after delivery of the account be referred to the Honourable Mr. Justice Slade if so desired. And that the costs of this appeal and the hearing before the Master be reserved until after the account has been delivered and that there be no order as to costs of the order dated 7th day of January, 1954. Liberty to restore".
An extension or extensions of time for delivery of the account was or were obtained by the appellant, and the matter again came before Mr. Justice Slade on the 22nd June, 1956. On that occasion Mr. Justice Slade made an order in these terms: "No order Is made upon the said appeal cave that the said appellant George Swirsky do pay to the respondent the trustee of William Thomas Norman, a bankrupt, the costs of this appeal and the costs of the application to Master Baker above-mentioned, such costs to be taxed"; and there was a certificate for counsel.
It appears that on that occasion Mr. Justice Slade expressed his views as to the position with respect to the account which had been delivered The learned judge apparently tooted the accuracy of the account by looking at the supporting evidence in respect of various items, and it appeared to him, so far as it went, to be a compliance with the order for the delivery of an account; but he expressed himself on the position regarding the account at some length and in terms which made it quite plain that he did not consider the account as by any means final He certainly, I think, envisaged further proceedings on the part of the trustee to verify the account and challenge any items which appeared to the trustee to be unjustified. But, the appeal having ended in no order being made, the matter was left In the air, and It was not clear to the trustee or his advisers what steps they should next take.
In fact on the 29th June, 1956, they took out a summons for directions. That summons came before Master...
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