Remmington v Scoles

JurisdictionEngland & Wales
Year1897
Date1897
CourtCourt of Appeal
COURT OF APPEAL REMMINGTON v. SCOLES. [1897 R. 242.] 1897 April 2. 1897 May 7 ROMER J. LINDLEY, LOPES and RIGBY L.JJ.

Practice - Striking out Statement of Defence - Frivolous and Vexatious Defence - Abuse of Process of the Court.

A defendant delivered a statement of defence in which he either denied or refused to admit each of the allegations in the statement of claim, but set up no case of his own. In previous proceedings in another action he had admitted upon oath several of the material statements which he now denied, and had not denied any of the others:—

Held (by Romer J. and by the Court of Appeal), that though the Court will not on affidavit evidence order a pleading to be struck out on the ground that the statements in it are false, the circumstances in the present case shewed the statement of defence to be frivolous and vexatious, and one which ought to be struck out as being an abuse of the procedure of the Court.

THIS was an appeal by the defendant from an order of Romer J. ordering that the defendant's statement of defence should be struck out, that he should be at liberty to deliver a fresh defence before a given day, and that he should pay the plaintiffs the costs of the application.

The statement of claim alleged to the following effect:— Paragraph 2: That by an agreement in writing dated December 16, 1895, made between the defendant of the first part, Maurice Ahern of the second part, and the three plaintiffs of the next three parts, it was agreed (1.) that the plaintiffs should pay as required to the defendant 2250l., to be applied as thereinafter mentioned; (2.) that the defendant should thereout pay the purchase-money, 1250l., of certain land at Haddenham which he had agreed to purchase; and (3.) that on the completion he should hold the land in trust for all parties thereto as therein more particularly mentioned, and execute such deed of trust as should be required. Paragraph 3: That the plaintiffs paid the defendant 1750l., part of the 2250l., and the defendant thereout paid the purchase-money of the land at Haddenham, and completed the purchase, the land being conveyed to him in fee on September 3, 1896, in consideration of 1205l., but no deed of trust was executed. Paragraph 4: That in consequence of the parties being unable to agree as to how the agreement should be carried out, an action was, about January 21, 1897, commenced in the Chancery Division, in which the present plaintiffs were plaintiffs and the defendant and Ahern were defendants, to have the trusts of the agreement of December, 1895, carried into execution. Paragraph 5: That the defendant having admitted to the plaintiffs that he had deposited the title-deeds of the land with Coppen & Son, stockbrokers, as security for advances to him on his private account, the plaintiffs, on February 10, 1897, commenced this action against the defendant and Coppen & Son, and obtained an ex parte injunction restraining any dealing with the land or the title-deeds. Paragraph 6: That on the hearing of a motion for a further injunction it was proved that the defendant had, on September 24, 1896, executed a legal mortgage of the land for 500l. to Coppen & Son, who, in December, 1896, advanced 200l. more on a further charge, and that Coppen & Son had no notice of the defendant's fiduciary position, and the action was dismissed as against Coppen & Son with costs, to be paid by the plaintiffs without prejudice to the question how they ought ultimately to be borne. Paragraph 7: That by reason of the “fraudulent” conduct of the defendant the land was subject to a mortgage debt of 700l., with interest at 5l. per cent. The plaintiffs claimed a declaration that the defendant was a trustee of the land; an injunction to restrain him from dealing with the land except in accordance with the agreement; that the defendant might be ordered to make good to the plaintiffs and Ahern the amount of the mortgage debt and interest, and the costs of the plaintiffs and Ahern in relation thereto; payment by the defendant to the plaintiffs of the costs paid by...

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