Re James (an Insolvent), (Attorney General intervening)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SCARMAN,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 22 October 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J1022-1 |
| Date | 22 October 1976 |
| Court | Court of Appeal (Civil Division) |
In the Matter of David Emlyn James an insolvent
Her Majesty's Attorney-General Intervening
[1976] EWCA Civ J1022-1
The Master of the Rolls
Lord Justice Scarman and
Lord Justice Geoffrey Lane
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice in Bankruptcy
On Order in Aid from The High Court of Rhodesla
MR. D. SULLIVAN, Q.C. and MR. E.C. EVANS LOMBE (instructed by Messrs Kenneth Elliott & Rowe, Solicitors, Romford) appeared on behalf of the Appellant.
MR. A. BATESON.Q.C. and MR. M. CRYSTAL (instructed by Messrs Charles Russell & Co., Solicitors, London) appeared on behalf of the Respondent.
MR. BLOM-COOPER, Q.C. and MR. P. GIBSON (instructed by the Treasury Solicitor) appeared on behalf of the Attorney-General intervening.
David Emlyn James is a lawyer who has gone astray.
He was a partner in a firm of five lawyers practising at Lasaka in Zambia. The firm's name was Ellis & Co. The names of the four partners were: Green, Moxon, Quirk and Hadden. They sound as if they came originally from England. The four say that David Emlyn James went off with a sum of £160,000 belonging to the firm or its clients. He disappeared. But the story goes that, with the money in his pocket, he gambolled round Europe and came to rest for a while in England. He put these funds into safe hands here, or, at any rate, into hands where he thought it was safe from his four partners. Some of it in cash at bank, some in shares and some in getting a half-share in a house at Bromley. None of it, I suppose, in his own name, but in the names of other persons, real or fictitious. Having tucked a lot of it away, out of reach, as he thought, he went back to Africa. But he did not dare show up in Zambia again. Instead he went next door to Rhodesia. There, we are told, he got into trouble again. But a different kind of trouble. It was something to do with pornography. He was arrested and put into the remand prison at Salisbury, Rhodesia.
It was there that the other four partners found him. They were anxious to bring him to book, if they could: or, at any rate, the get some of their money back. Until he was found, they could do nothing, And, when he was found, they had to go against him in Rhodesia. That was the only place in which they could get redress. It is a universal rule that, to proceed against a man, you must go against him in the place where he is personally present. So they issued a writ against him in Rhodesia and it was served on him in the prison at Salisbury. He put in a so-called defence, but it was no good. Judgment was given against him for $214,351.18. When he did not pay, he was made bankrupt under the insolvency laws of Rhodesia, and a trustee was appointed tocollect his assets.
Now the assets of David James were in England. The trustees wanted to collect them. So on 16th April, 1974, the Chief Justice of Rhodesia, Sir Hugh Beadle, issued a letter of request asking the English Courts to help in collecting them. Following that request, an application was made to the High Court of Justice here in England. It was served on David James in the prison in Rhodesia. In reply he wrote a long letter to the Registrar of Bankruptcy here in England. In it he said: I am not prepared to collaborate with those seeking to deprive me of the few assets of which I stand possessed outside Zambia, but this must not be construed as in any way challenging the status of the High Court of Rhodesia … As your granting of the application would be tantamount to the English Courts accepting the validity of the High Court of Rhodesia and is almost certain to be supported by the plaintiffs in other countries of the world, I am prepared to waive any illegality in the constitution of the High Court of Rhodesia so far as this may affect me", In short, David James himself took no objection to the English Court exercising jurisdiction in the matter.
On 11th October, 1974, the Registrar in Bankruptcy acted on the letters of request. He appointed a chartered accountant, here in England, as a Receiver to get in the assets of David James here, sell them and remit the proceeds to the Trustee in Rhodesia.
The English Receiver was, however, a good deal in the dark. He did not know just what David James had done with the money or property. He did not know in whose names it stood. He required much more information before he could do anything effective. David James by this time had been released from the prison in Rhodesia. He had gone underground somewhere or other. He had disappeared again without trace. But there was one man who might know a good deal. It was his brotherGeoffrey James who was living in the house at Bromley, in which David James was said to have a half share. So the English Receiver sought to get information from him. The brother Geoffrey was not willing to give it voluntarily. So the English Receiver issued a summons against him. He summoned the brother Geoffrey James to attend before the Registrar in Bankruptcy to give evidence and to produce any material relating to David James or his dealings.
Geoffrey James objected. He took the point which David James had earlier declined to take. He said that the High Court in Rhodesia was
on illegal Court - that it was the instrument of an illegal regime and that the English Courts should not recognise it or anything that it
did. In particular, it should give it no help whatever to collect the
assets of David James.
The Registrar in Bankruptcy (Mr. Registrar Hunt) over-ruled this objection. So had another Registrar, Mr. Registrar Parbury, in a similar case in 1969. The Registrar ordered Geoffrey James to attend to give information. But Geoffrey James still objected. He entered a notice of appeal to this Court. But, before the appeal was heard, his solicitors told the Attorney-General about it in case the Crown should be interested. The Attorney-General was so interested that he applied to be made a party to the appeal. He was made a party on condition that he paid the costs of the Receiver.
The appeal came before us last term. At the hearing it was the Attorney-General, through his Counsel, Mr. Blom-Cooper, Q.C. who launched the main attack on the Rhodesian Courts. It was he who asked us to give no recognition whatever to what the Rhodesian Courts had done. He said that we should give no help whatever to get in the money or property of David James - so as to restore it to the rightful owners. It was, he said, in the interests of high policy. All I would say about hisargument is this. If it be in the interests of high policy, it is not in the interests of justice. I see no justice whatever in letting David James get away with his ill-gotten gains and letting the rightful owners go away empty-handed.
Now for Section 122. Before I deal with the submission, I must first state the Section which gives the High Court of Justice in England any jurisdiction in the matter. It is Section 122 of the Bankruptcy Act, 1914. It says: "The High Court, the county courts, and courts having jurisdiction in bankruptcy in Scotland and Ireland, and every British court elsewhere having jurisdiction in bankruptcy or insolvency, and the officers of those courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the court seeking aid, with a request to another of the said courts, shall be deemed sufficient to enable the latter court to exercise, in regard to the matters directed by the order, such jurisdiction as either the court which made the request, or the court to which the request is made, could exercise in regard to similar matters within their respective jurisdictions".
On that Section the question is whether the High Court of Rhodesia at the material time - that is, in 1974, when it exercised its jurisdiction in insolvency - was a "British Court having jurisdiction in bankruptcy or insolvency."
In considering it, there is this complication. The various orders in Rhodesia were made by different judges appointed at different times. The first two Orders (for judgment against David James and provisional sequestration) were made on 28th January, 1974 by Mr. Justice Beck, who was appointed after U.D.I. The next two Orders (for final sequestration and for letters of request to be issued) were made by Mr. Justice Goldin, who was appointed before U.D.I. The letters of requestthemselves were issued by the Chief Justice, Sir Hugh Beadle, who was appointed a Judge in 1950 and Chief Justice in 1961, long before U.D.I.
If those judges, in making their various orders, were all exercising the jurisdiction of a "British Court having jurisdiction in insolvency", that Section 122 enabled the High Court of Justice here in England to give its aid to collect the assets. Otherwise not.
Then I come to deal with the general principle. We heard argument on the consitutional position last July. There has since been a significant change. At that time there was an illegal regime in control in Southern Rhodesia. It looked as if it would continue indefinitely. The United Nations had imposed sanctions in the hope of bringing the illegal regime to an end. These amounted to an economic blockade. We were urged to impose a legal blockade as a counterpart of the economic blockade.
The outlook is now altered beyond measure. There is a reasonable prospect that in the near future the illegal regime will come to an end. It will be replaced by a lawful regime. There will be a new Government under a new Constitution. It will be entitled to universal recognition. No longer will Southern Rhodesia be a colony under the British Crown. It will be an independent country. There will no longer be any need for an economic blockade. Nor...
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