Theophile v The Solicitor-General
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter,Lord Normand,Lord Morton of Henryton,Lord Reid,Lord Radcliffe |
| Judgment Date | 09 February 1950 |
| Judgment citation (vLex) | [1950] UKHL J0209-3 |
| Court | House of Lords |
| Docket Number | Case No. 32 |
| Date | 09 February 1950 |
[1950] UKHL J0209-3
Lord Porter
Lord Normand
Lord Morton of Henryton
Lord Reid
Lord Radcliffe
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Theophile against the Solicitor-General (on behalf of His Majesty), that the Committee had heard Counsel, as well on Tuesday the 22d, as on Wednesday the 23d and Thursday the 24th, days of November last, upon the Petition and Appeal of Verner Theophile of Glen Ierne, Clifden, County Connemara, in the Free State of Eire, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 16th of July 1948, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King in His Court of Parliament, might seem meet; as also upon the printed case of His Majesty's Solicitor-General (on behalf of His Majesty), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 16th day of July 1948, complained of in the said Appeal, be, and the same is hereby. Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Appellant is a citizen of Rumania. For some years, however, before the proceedings under review, he carried on a leather business in this country, apparently with success. On the 1st January, 1946, two notices of assessment for the sum of £10,000 each in respect of Excess Profits Tax in connection with this business, covering the two chargeable accounting periods ending on the 31st March, 1943 and 31st March, 1945, were issued to the Appellant, and on the 10th January, 1946, a further notice of assessment was issued to him for another sum of £10,000 for Excess Profits Tax in respect of the chargeable accounting period ending the 31st March, 1944.
Certain incidental proceedings were taken but are not material to the question now before your Lordships. It is enough to record that on the 14th November, 1947, a bankruptcy petition at the instance of the Crown was issued in respect of the non-payment of these three sums, amounting to £30,000 in all, which had not then been paid and are still unpaid.
It appears that the Appellant had disposed of his business by the end of 1946 and meanwhile he left this country on the 31st October of that year and has resided in Eire since that date.
By section 1 of the Bankruptcy Act, 1914, it is provided—
"(1) A debtor commits an act of bankruptcy in each of the following cases:—
( a) If in England or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally;
( b) If in England or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof;
(c) If in England or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon, which would under this or any other Act be void as a fraudulent preference if he were adjudged bankrupt;
( d) If with intent to defeat or delay his creditors he does any of the following things, namely, departs out of England, or being out of England remains out of England, or departs from his dwelling-house, or otherwise absents himself, or begins to keep house;"
"(2) In this Act, the expression 'a debtor' unless the context otherwise implies, includes any person, whether a British subject or not, who at the time when any act of bankruptcy was done or suffered by him—
( a) was personally present in England; or
( b) ordinarily resided or had a place of residence in England; or
c) was carrying on business in England, personally, or by means of an agent or manager; or
( d) was a member of a firm or partnership which carried on business in England,"
and by section 4(1), ( c) and ( d),
"(1) A creditor shall not be entitled to present a bankruptcy petition against a debtor unless— ….
( c) the act of bankruptcy on which the petition is grounded has occurred within three months before the presentation of the petition, and
( d) the debtor is domiciled in England, or within a year before the date of the presentation of the petition has ordinarily resided, or had a dwelling-house or place of business, in England, or (except in the case of a person domiciled in Scotland or Ireland or a firm or partnership having its principal place of business in Scotland or Ireland) has carried on business in England, personally or by means of an agent or manager, or (except as aforesaid) is or within the said period has been a member of a firm or partnership of persons which has carried on business in England by means of a partner or partners, or an agent or manager."
In these circumstances the contention for the Crown is that the Appellant has committed an act of bankruptcy because when the petition was issued he was a debtor in that he was carrying on business in England personally at that time and that being out of England he remained out of England with intent to defeat or delay his creditors and so committed the act of bankruptcy defined in section 1 (1)( d).
It is not denied that he is remaining out of England nor that there is prima facie evidence of an attempt to defeat or delay the Crown in its endeavour to collect the debt which is claimed to be due, but the Appellant maintains that, being a Rumanian subject, he is not a debtor within the meaning of the Act and that he has not committed an act of bankruptcy inasmuch as he did not carry on business in England at the date of the petition or during any portion of the three months prior thereto.
The Respondent maintains that the wording of subsection (2) in terms embraces both English subjects and foreigners provided that either class carried on business in this country at the date of the act of bankruptcy relied upon or within three months prior thereto and that there is a long series of cases which establish that a business does not cease to be carried on in this country until all the debts incurred in the course of it have been discharged.
As regards the first point the Appellant maintains that, despite its wording, subsection (2) has no application save in the case of British subjects or persons domiciled here or in a case where the act of bankruptcy relied upon was committed in this country. In the present case he relies upon the facts that the petition is based upon an allegation that being out of England he has remained abroad, that he is a Rumanian subject and that the alleged act of bankruptcy by its very nature has not been and could not be committed in this country. It would, he says, be contrary to the comity of nations and to the ordinary construction of Acts of Parliament to decide that an act committed out of this country by a foreign national domiciled abroad should be held to come within the mischief of the Act.
My Lords, section 4 (1) limits the circumstances in which a creditor can present a bankruptcy petition but I do not think that it throws any further light upon his right to do so. Before it can be presented, there must be a debtor and he must have committed an act of bankruptcy. If those two prerequisites are established the petition may be issued subject to the conditions laid down in section 4(1). The answer therefore to the question submitted to your Lordships depends in the first instance upon the true meaning of sections 1 (1) ( d) and (2) ( c).
Interpreted in accordance with its strict wording the latter subsection applies to British and foreign nationals alike, and unless some principle to the contrary can be established I should so construe it. If I am right in this an invocation of the comity of nations is irrelevant. If the meaning of an Act of Parliament is ambiguous that doctrine may be prayed in aid. but where an English Statute enacts a provision in plain terms no such principle applies. Any foreign nation of which the person affected is a member or with whom such person is domiciled is free to disregard the provisions of the English enactment, but the person concerned cannot himself take exception, though it may be he will escape from compliance with its terms because he is out of the jurisdiction and cannot be reached by English process.
The principle is, I think, accurately expressed in paragraphs 658 and 659 of Halsbury's Laws of England (Hailsham edition) at page 509 of Volume 31 sub. title Statutes.
658. There is a presumption that Parliament does not assert or assume jurisdiction which goes beyond the limits established by the common consent of nations. On the principles already stated, however, this presumption must give way before an intention clearly expressed.
659. Statutes are to be interpreted, provided that their language admits, so as not to be inconsistent with the comity of nations. International law, however, being mainly conventional, can, it seems, only be administered by the Courts when it forms part of the law of this country. If, therefore, statutory enactments are clearly inconsistent with international law, they must be so construed, whatever the effect upon the rights of aliens not within the jurisdiction may be."
Lord Halsbury's observations in Cooke v. The Charles A. Vogeler...
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