Les Fils Dreyfus et Cie Société Anonyme v Clarke
| Jurisdiction | England & Wales |
| Judge | LORD Justice PARKER,LORD JUSTICE SELLERS |
| Judgment Date | 31 January 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0131-2 |
| Court | Court of Appeal |
| Date | 31 January 1958 |
[1958] EWCA Civ J0131-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Parker and
Lord Justice Sellers.
Mr. L.G. SCARMAN, Q.C. and Mr. C.F. DEAN (instructed by Messrs. Rowe D & Maw) appeared on behalf of the Appellant Plaintiffs.
Mr. F.W. BENEY, Q.C. as Mr. M.G. POLSON and Mr. IAN KENNELY (instructed by Messrs. G.P. Wallace & Co.,) appeared on behalf of the Respondent Defendant.
: This is an appeal from the decision of Mr. Justice Havers given on the 13th December of last year allowing an appeal from the Master, who, on an application under Order XIV, had given the Plaintiffs leave to sign final judgment. In allowing the appeal, the Judge did not give the Plaintiffs leave to appeal he merely dismissed the application on the ground that he had no jurisdiction. He thus left it to the Plaintiffs, if so advised, to bring further proceedings under Order XIV. In those circumstances it seems to me that this is a case where the Court has jurisdiction to entertain the appeal, and indeed Mr. Beney on behalf of the Defendant has not argued to the contrary.
The matter arises in this way: by a specially endorsed writ dated the 24th October, 1957, the Plaintiffs, who are a corporation in Switzerland, alleged (to put it shortly), first, that in December of 1956 Messrs. Guinness Mahon & Co. in London, a firm of met chant bankers, had lent the Defendant a sum of £10,000 repayable on the 30th April, 1957. Secondly, that after that sum had become due, namely, on the 10th October, 1957. Guinness Mahon assigned the debt to the Plaintiffs; and, thirdly, that notice of that assignment had been given and the Defendant had neglected to pay. They claimed the sum of some £10,000.
A summons under Order XIV was issued on the 1st November, and on the day before, the 31st October, Mr. Lang, a Director of the Plaintiffs, swore an affidavit. It is a formal affidavit supporting the claim endorsed on the writ; and as a certain amount of the issues here concern this affidavit, I must read it. It says this: "1. The defendant Thomas Oliver Neville Clarke is justly and truly indebted to the above named plaintiffs in the sum of £10,194.19.5. representing a capital sum of £10,000 owing by the Defendant to the Plaintiffs together with the sum of £194.19.5 interest thereon and was so indebted at the commencement of this action. The particulars of the said claim appear by the endorsement on the writ of summons in this action. 2. I verily believe that there is no defence to this action. 3. It is within my knowledge that the said debt was incurred and is still due and owing. I am duly authorised by the Plaintiffs to make this affidavit."
On the 7th November the matter came before the Master on that affidavit. The defendant had no affidavit in reply. Those representing him said that. he desired to file an affidavit, and finally the Master gave leave to the Plaintiffs to enter judgment, but stayed the drawing up of the Order for 4 days, to enable the Defendant to file an affidavit. On the 11th November the Defendant did file an affidavit in answer, and the summons was restored. I think It was before the Master on that day, the 11th November, and possibly on a second occasion; but, at any rate, the matter was dealt with finally by the Master on the 18th November, when he gave the Plaintiffs leave to enter final judgment for the sum claimed.
The Defendant appealed to the Judge in Chambers, and before him Mr. Beney for the Defendant raised a number of points. He submitted, firstly, that Mr. Lang's affidavit which I have read was defective In two respects: first, that it did not verifythe original debt to Guinness Mahon or verify that it was still due end owing at the time of the alleged assignment to the Plaintiff; and secondly he said it did not verify the assignment itself, either by saying that the deponent had knowledge of it or exhibiting it. Mr. Beney then went on to submit that in those circumstances the Court had no jurisdiction to enquire into the merits at all. Put shortly, he says it Is a condition precedent to the issue of the summons that there should be a proper affidavit under the Order and that it cannot be cured. In the alternative he submitted that if he was wrong on that point, at any rate the further affidavits which were filed did not cure the defects; and finally he appealed on the merits.
The learned Judge in a long and careful judgment upheld Mr. Beney's first contention that the affidavit was defective in those two respects but he was against him on the second objection and held that any defect could be cured by further affidavit. He then went on to hold that the first defect complained of, namely, that the original debt to Guinness Mahon was not verified or that the money was still due and owing at the date of the assignment had been cured by subsequent affidavits; hut he upheld Mr. Beney in his second criticism in regard to the assignment and held that at the end of the day, looking at all the facts, the assignment had not been verified. Accordingly, following the decision of this Court in ( Symon & Co. v. Palmer's Stores (1903) Ltd. (1912) 1 K.B., 259) He held that he had no jurisdiction to entertain the matter. He accordingly dismissed the claim, and under Rule 9 (b) of Order XIV, ordered the Plaintiffs to pay the Defendant's costs forthwith. It would seem, therefore, that the only point on which the learned Judge was against the Plaintiffs was in regard to the failure to verify the assignment.
Before this Court Mr. Scarman makes two submissions in regard to that. He says, firstly, that on a fair and reasonable reading of the first affidavit of Mr. Lang, he did sufficiently verify the assignment. Secondly, he says that though the assignment was never formally exhibited to any affidavit, it was in fact put in before the Master, finally, in case he is wrong on both points, he has asked and obtained the leave of this Court to file and put in a further affidavit exhibiting the original assignment.
As regards his first submission, I am afraid I said it in the course of the argument and I say it again in my view this Is a thoroughly bad affidavit in support of an Order XIV summons. It is the ordinary form used and properly used in the case of a simple debt, but it is wholly Inadequate and defective for the...
To continue reading
Request your trial
- Bank Bumiputra Malaysia Bhd; Syarikat Islamiyah
- Chong Peng Chong v Chin Lean Fatt
- Tiffany Glass Ltd v F Plan Ltd
-
Tiffany Glass Ltd v F. Plan Ltd
...in its defence to that action, which supplied the omission from the affidavit of a statement to that effect. See Les Fils Dreyfus et Cie Societe Anonyme v. Clarke [1958] 1 All E.R. 459 per Parker L.C.J. at p. 462E. 65 That the evidence to satisfy the requirement of 0. 6 r. 2(1) (c) is not r......