Jefferson Ltd v Bhetcha
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRANDON,LORD JUSTICE MEGAW |
| Judgment Date | 03 May 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0503-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 May 1979 |
[1979] EWCA Civ J0503-3
Lord Justice Megaw and
Lord Justice Brandon
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
On appeal from Order of Mr. Justice Forbes - London)
(Revised)
Mr. WILLIAM POULTON (instructed by Messrs, Joelson Wilson, London, W.1) appeared on behalf of the Appellants (Plaintiffs).
Mr. JOHN OWEN, Q.C. and Mr. G.K. RICE (instructed by Messrs. Zackon & Gilroy, London, N.W.2) appeared on behalf of the Respondent (Defendant).
(without calling upon Counsel for the Appellants to reply)
This is an appeal from an order of Mr. Justice Forbes made on 31st January, 1979. The order as drawn - though, as I shall have to consider hereafter, it may not reflect accurately what the learned judge intended to decide - was that the Order 14 summons instituted by the plaintiffs, Jefferson Ltd., should stand adjourned until the conclusion of criminal proceedings which were then (and are still) pending against the defendant, Mrs. Indu Bhetcha. The order was made on the undertaking of the defendant to pay into a solicitors' joint account the sum of £24,206,80 within 7 days. That sum has in fact been paid into a joint account. The plaintiffs appeal against that order. The defendant, by leave given by this Court during the hearing before us, cross-appeals, asking for an order that the action should be stayed pending the conclusion of the criminal proceedings. In the alternative she seeks to uphold the order as it stands: namely that the Order 14 proceedings should be adjourned.
The plaintiffs employed the defendant as a general accounts clerk from March, 1976, until 30th September, 1978, when she was dismissed. In November, 1978, the plaintiffs, according to an affidavit which was put before the learned judge on their behalf, sworn by Mr. Andrew Piggott, financial controller of the plaintiff company, discovered apparent irregularities. Five cheques appeared to have been misappropriated. Three of them, it was said, had, been paid into an account of the defendant with the Halifax Building Society, the names of the payees having, it was suggested, been altered. The other two cheques, it was said, had been paid into an account of a friend of the defendant. Since the date of the hearing before Mr. Justice Forbes the defendant, we are told, has been committed for trial in the Crown Court. As to when the trialis likely to take place, we have no information.
Meanwhile, on 15th December, 1978, the plaintiffs issued a writ claiming against the defendant £29,190.46, being the total of the 5 cheques which had been drawn between the 19th June and 11th August, 1978. That claim was put on the ground that the defendant had misappropriated the cheques, which, they said, had been drawn by the plaintiff company in favour of companies who had supplied goods to it. The statement of claim does not, at any rate in express terms, assert fraud, or forgery, or any criminal offence. There is no doubt that the charges in the criminal proceedings and the claim in the civil action are founded on the same matters.
Before Mr. Justice Forbes, one of the points taken on behalf of the defendant was that Order 14 proceedings were not appropriate because the plaintiffs' cause of action involved, in substance, an allegation of fraud. Order 14 Rule 1 sub-paragraph (2) provides that the Order 14 procedure does not apply to "an action which includes a claim by the plaintiff based on an allegation of fraud". The learned judge rejected that submission. It was not renewed by any cross-notice to this Court until this morning. Then Mr. Owen - who appears in this Court on behalf of the defendant, though he did not appear below - asked us to give leave to include this submission as a ground of cross-notice or cross-appeal. We refused leave. I shall return to that matter later.
The plaintiffs, having issued their writ, asked for an interlocutory injunction to restrain the defendant from using the funds which were in her account in the Halifax Building Society. Such an injunction was granted ex parte by Mr. Justice Forbes on 22nd December, 1978. It was confirmed and continued inter partes by Mr. Justice Pain, on 12th January, 1978, without opposition from the defendant.
Meanwhile, the defendant having entered an appearance to theaction, the plaintiffs, on 2nd January, 1979, applied "by summons under Order 14 for summary judgment for the amount claimed in the statement of claim. On 23rd January, 1979, the application came before Mr. Justice Forbes. The plaintiffs put before the judge an affidavit which had been sworn by Mr. Piggott on 20th December, 1978, for the purposes of the application for the interlocutory in junction. It set out facts, or what Mr. Piggott asserted to be facts, relating to the cheques in some detail, and with a substantial number of exhibits. It appears to me that, if and in so far as that affidavit remained unchallenged, it would have entitled" the plaintiff company, in the ordinary case, to be granted leave to enter summary judgment. Unless I have misunderstood Mr. Owen in his submissions this morning, he was disposed to accept that that would be so, on the basis of the affidavit having been left unchallenged. But it was submitted by Mr. Owen - as it had been submitted, in the court below - that this was not what I have referred to as being "the ordinary case", because of the concurrent criminal proceedings.
In paragraph 2 of an affidavit sworn by the defendant herself on 19th January, 1979, the point was taken in these terms (page 64 of the bundle): "It is clear that the plaintiffs' case and the prosecution are to be based upon Mr. Piggott's evidence set out in his first affidavit, I would take issue with a great number of matters contained in his affidavit of the 20th December and deny that I am either guilty of the offences of which I am charged or liable to the plaintiffs. If I am required to swear an affidavit in opposition to the plaintiffs' summons under Order 14 I shall necessarily disclose the whole of my defence and thereby many matters which will be put to Mr. Piggott in cross-examination at the criminal trial. I am concerned that Mr. Piggott should not be given such advance notice of my case and feel that the conductof my defence could potentially be prejudiced by this premature disclosure".
In paragraph 3 of the same affidavit it was said: "It would, in my respectful submission, bearing in mind the allegations I would have to make against Mr. Piggott, be wrong to consider giving judgment for the plaintiffs upon the basis of his affidavit when those facts contained therein will be matters for consideration at the trial of the criminal proceedings and the subject of challenge by myself through counsel".
Paragraph 4 says: "Were it not for these proceedings I would not be required by anybody concerned in the criminal prosecution to make any further statement in connection therewith. By this procedure albeit in another jurisdiction it is being sought to compel me to make such a statement in advance of the criminal trial".
That affidavit was in fact sworn for the purpose of an application on behalf of the defendant to stay the action. That summons had not been served on the plaintiffs until 22nd January: that is, the day before the return date of the Order 14 summons. Therefore, unless the judge was prepared, having given the other side the opportunity to object, to permit that application to be pursued before him on short notice, it was not properly before him. It is, unfortunately, obscure what did happen in that respect at the hearing before the judge. If the defendant's summons for the stay of the action was not before him, and if he accepted the defendant's submission, then all that the judge could have done would have been, not to stay the action, but to grant an adjournment of the Order 14 summons. That, according to the order as it was drawn up, was what the learned judge did. Paragraph 2 of the order (page 5 of the record) reads: "This summons for judgment under Order 14 do stand adjourned until the conclusion of criminal proceedings now pending in the Marlborough Street Magistrates' Courtin respect of the subject-matter of this action (i.e. until the end of any trial, if committed, but not to extend to any appeal)".
But according to the last paragraph of the learned judge's notes of his reasons for judgment as put before us, being notes which were approved by the learned judge himself, it would appear that he intended to order more than that. He is reported as having said, in the last paragraph (page 17 of the record), "It seems to me that the correct order is to adjourn the civil proceedings until after the criminal trial, and I will adjourn now to give the defendant the opportunity to file further evidence as to the present whereabouts of the monies the subject of the claim and to bring such money into court as remains within her control as evidence of her good faith". The judge says, "adjourn the civil proceedings". He means, I think, "stay the civil proceedings".
So we have a confusion between the order as drawn up and the judge's reasons. We have been told that the order was drawn up as it was by agreement between counsel - counsel for...
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