Re Tucker (RC) (A Bankrupt)ex parte Tucker (KR)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE LLOYD,THE VICE-CHANCELLOR |
| Judgment Date | 16 November 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1116-3 |
| Docket Number | 87/1144 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 1987 |
[1987] EWCA Civ J1116-3
The Vice-Chancellor
(Sir Nicolas Browne-Wilkinson)
Lord Justice Dillon
and
Lord Justice Lloyd
87/1144
No. 1361 of 1985
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
CHANCERY DIVISION.
IN BANKRUPTCY
MR JUSTICE SCOTT.
Royal Courts of Justice,
MR JULES SHER, Q.C. and MR CHRISTOPHER BROUGHAM (instructed by Messrs Roneys) appeared on behalf of the appellant (applicant).
MR EBEN HAMILTON, Q.C and MISS ELIZABETH GLOSTER (instructed by Messrs Stephenson Harwood) appeared on behalf of the respondent (respondent).
This is an appeal against an order of Scott J. made on the 14th January 1987. The appellant, Mr. Keith Tucker, is a brother of a bankrupt debtor Roy Clifford Tucker, and the appeal raises issues under section 25 of the Bankruptcy Act 1914. That section provides as follows:
"25—(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 deem capable of giving information respecting the debtor, his dealings or property, and the court may require any such person to produce any documents in his custody or power relating to the debtor, his dealings or property.
(2) If any person so summoned, after having been tendered a reasonable sum, refuses to come before the court at the time appointed, or refuses to produce any such document, having no lawful impediment made known to the court at the time of its sitting and allowed by it, the court may, by warrant, cause him to be apprehended and brought up for examination.
(3) The court may examine on oath, either by word of mouth or by written interrogatories, any person so brought before it concerning the debtor, his dealings, or property.
(4) If any person on examination before the court admits that he is indebted to the debtor, the court may, on the application of the official receiver or trustee, order him to pay to the receiver or trustee, at such time and in such manner as to the court seems expedient, the amount admitted, or any part thereof, either in full discharge of the whole amount in question or not, as the court thinks fit, with or without costs of the examination.
(5) If any person on examination before the court admits that he has in his possession any property belonging to the debtor, the court may, on the application of the official receiver or trustee, order him to deliver to the official receiver or trustee such property or any part thereof, at such time, and in such manner, and on such terms, as to the court may seem just.
(6) The court may, if it thinks fit, order that any person who if in England would be liable to be brought before it under this section shall be examined in Scotland or Ireland, or in any other place out of England."
It is not in doubt that Mr. Keith Tucker is indeed a person whom the court could fairly deem, and did deem, capable of giving information respecting the debtor, his dealings or property.
The difficulty in the case arises because although Mr. Keith Tucker is a British subject he does not live in England. For valid reasons of his own he ceased to live in England 15 years ago. For many years past he has lived in Belgium where he owns and runs a school of equitation.
At the time of the enactment of the 1914 Act, however, and until an amendment of the Bankruptcy Rules in 1962, there was no power to serve any process in bankruptcy proceedings on any person, other than the debtor himself, who was not in England. Rule 86 of the Bankruptcy Rules 1952 in its original form merely provided, as did its predecessors, for service of certain documents on the debtor where the debtor was not in England. The Rules of the Supreme Court do not apply to bankruptcy proceedings.
There were indeed provisions in the 1914 Act for courts having jurisdiction in bankruptcy to make orders in aid to assist other courts having jurisdiction in bankruptcy and to enable warrants of courts having jurisdiction in bankruptcy in England to be enforced in certain other territories. These provisions are contained in sections 122 and 123(1) of the 1914 Act as follows:
"122. The High Court, the county courts, the 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.
123.—(1) Any warrant of a court having jurisdiction in bankruptcy in England may be enforced in Scotland, Ireland, the Isle of Man, the Channel Islands, and elsewhere in His Majesty's dominions in the same manner and subject to the same privileges in and subject to which a warrant issued by any justice of the peace against a person for an indictable offence against the laws of England, may be executed in those parts of His Majesty's dominions respectively, in pursuance of the Acts of Parliament in that behalf."
Plainly these provisions could not have been used to obtain any order from the Belgian Courts or to enforce in Belgium any warrant of an English court having jurisdiction in bankruptcy.
I should add as a matter of history that sections 25, 122 and 123(1) of the 1914 Act repeated in the same wording provisions which had been contained in the Bankruptcy Act 1883, which was the immediate predecessor of the 1914 Act.
Whatever the construction of section 25 of the 1914 Act, therefore, it would not have been practicable, before 1962, to obtain the examination of Mr. Keith Tucker before the bankruptcy court in England under section 25 unless either (a) he was willing to come to be examined, or (b) the trustee in bankruptcy succeeded in serving him with a summons under sub section (1) of section 25 when he happened to be in England on a visit.
In 1962, however, Rule 86 of the Bankruptcy Rules was amended to read as follows:
"86. Where any process or order of the court or other document is required by the Act or these Rules to be served on any person who is not in England, the court may order service on him of that process or order or other document to be effected within such time and in such manner as it thinks fit, and may also require such proof of the service of that process, order or other document, as it thinks fit."
That amendment is basic to these proceedings.
The receiving order in bankruptcy was made against the debtor on the 22nd July 1985 and he was adjudicated bankrupt on the 9th August 1985. His trustee in bankruptcy, a partner in a well-known firm of accountants, was appointed in September 1985. Because of the dates, the bankruptcy is governed by the 1914 Act, and not by the Insolvency Act 1986. The bankruptcy is now effectively a tax bankruptcy; the petitioning creditor's debt, founded on a judgment in the Queen's Bench Division for U.S $412,176-odd, has been assigned to a Panamanian company and been released, and virtually all other claims in the bankruptcy have been paid off by relatives of the debtor or been released, except for a claim by the Inland Revenue, not yet admitted for proof, for tax in excess of £18 1/2m., which is the subject of assessments which are subject to appeal.
Against that background the trustee formed the view, which has never been disputed, and could not now be disputed, that Mr. Keith Tucker is a very important examinee in this bankruptcy. Accordingly, on the 9th May 1986 on ex parte application to a bankruptcy registrar in the High Court he obtained, firstly, the issue of a summons under section 25(1) requiring Mr. Keith Tucker to attend for examination in the High Court on the 2nd June 1986 and to produce on that occasion documents relating to a large number of companies and trusts and certain properties named in the summons, and, secondly, leave, purportedly under the amended Rule 86, to serve the summons on Mr. Keith Tucker by post at his home in Belgium. It is accepted that the summons, purportedly served in pursuance of that leave, was in fact received by Mr. Keith Tucker in Belgium on the 13th May 1986. On that same date, 13th May, on a further ex parte application to the registrar, the trustee obtained the issue of an identical summons requiring Mr. Keith Tucker to attend for examination and to produce documents in the High Court on the 3rd and 4th July 1986, together with a similar leave to serve that summons on Mr. Keith Tucker by post at his home in Belgium. It is not in doubt that it was so served, though the precise date is not known. It was suggested to us that the reason why there were two summonses with different return dates was that someone discovered that the 2nd June 1986, the return date for the first summons, was a bank holiday. Nothing has turned on that, however, or on the fact that there were two summonses.
Mr. Keith Tucker has never submitted to the jurisdiction of the English bankruptcy Court and by a notice of motion dated the 30th May 1986...
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