Williams v Williams; Tucker v Williams
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,SIR GEORGE WALLER |
| Judgment Date | 10 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0710-1 |
| Docket Number | 87/0672 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 1987 |
[1987] EWCA Civ J0710-1
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Parker
Sir George Waller
87/0672
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BLACKPOOL COUNTY COURT
Royal Courts of Justice
MR T. R. RYDER, instructed by Messrs Wren Hilton Apfel & Ascroft Whiteside (St Annes), appeared for the Appellant (Petitioner/Second Defendant).
MR J. M. JARVIS, instructed by Messrs Durrant Piesse, appeared for the Respondents (Respondents).
This appeal raises a short, but important, point under the Bankers' Books Evidence Act 1879 as amended by the Banking Act 1979 (Schedule 6, paragraph 1). The point is whether the Act extends to paying-in slips and paid cheques retained by banks after the conclusion of the transactions to which they relate.
Mrs Williams has sought disclosure by the bank of copies of those documents for use as evidence in two different proceedings. In the first, in which she petitions for judicial separation from her husband, she also seeks ancillary financial orders. This involves ascertaining the income and capital resources of her husband, who is loath to assist and has ignored all orders for discovery. Mrs Williams' case is that her husband has secret bank and building society accounts and, in addition, has used his position as chairman or director of an unincorporated and unregistered "charitable" organisation to conceal the extent of his own wealth by mixing his own moneys with those of the "charity" in its accounts with the Orpington branch of Barclays Bank. In the second, the trustees of the "charity" are seeking an order against both Mr and Mrs Williams for possession of the matrimonial home at St Anne's-on-Sea alleging that it is owned by the "charity". Mrs Williams' defence is that although it was bought with money drawn from the account of that organisation, the money used was that of her husband and that he is the beneficial owner of the house.
Clearly if justice is to be done, Mrs Williams must be able to find out what payments have been made into and out of these charitable accounts and her husband's accounts and by and to whom such payments were made. The question is how this is to be achieved. As the bank concedes, she could obtain a subpoena duces tecum addressed to the appropriate officer of the bank requiring him to attend at the hearing with all documentation in the hands of the bank relating to the accounts of the "charity" and of her husband. However, this would probably, if not inevitably, lead to adjournments in both proceedings in order that the documents could be studied and further inquiries made. If, on the other hand, Mrs Williams and her advisers could have this information in advance of the hearings, the financial and other costs of an adjournment would be avoided and indeed the chances of getting at the truth would be improved.
With these considerations in mind, on 24th February 1987 Mrs Williams applied ex parte in the Blackpool County Court and obtained an order from Mr Deputy Registrar Pickup requiring the bank to allow her and her solicitors "to inspect and take copies of all entries in the books of Barclays Bank p.l.c. Orpington Kent relating to [Mr Williams'] account therewith and also the accounts of ['the charity']".
On 10th March 1987 upon a further ex parte application Mrs Williams obtained an extended order by Mr Registrar Jeffreys in the following terms:
"1. further to the provisions of the order of Mr Deputy Registrar Pickup, the Solicitors for [Mrs Williams] be at liberty to inspect and take copies of all entries in all of the records used and kept in the ordinary course of their business by Barclays Bank PLC, Orpington concerning and relating to the banking account or accounts of [Mr Williams] and also of ['the charity'] between 1st January 1978 and the date hereof (whether such records be written, or as microfilm, magnetic tape or any other form of mechanical or electronic data retrieval system) and in particular that they be at liberty to inspect and take copies of:—
"(1) all paid cheques issued on any of the said accounts and all such other documentary or other records used by the said bank and identifying the recipient of any cheque paid on the said accounts
"(2) all documentary or other records of payment into the said accounts, including credit slips, paying in slips or counterfoils
"(3) all documents of transfer recording or authorising payments from one of the said accounts to another thereof
"(4) all standing orders or direct debit instructions as ordered in relation to the said accounts".
Upon being served with this later order, the bank appealed and Her Honour Judge M. Holt varied it by substituting an order in the following terms:
"IT IS ORDERED that further to the provisions of the order of Mr Deputy Registrar Pickup dated the 24th day of February 1987 the Solicitors for [Mrs Williams] be at liberty to inspect and take copies of all entries in all of the records used and kept in the ordinary course of their business by Barclays Bank plc, Orpington concerning and relating to the banking account or accounts of [Mr Williams] and also of ['the charity'] between. 1st January 1978 and the date hereof (whether such records be written, or as microfilm, magnetic tape or any other form of mechanical or electronic data retrieval system) and in particular that they be at liberty to inspect and take copies of all documents of transfer recording or authorising payments from one of the said accounts to another thereof."
Mrs Williams appeals seeking the restoration of the learned Registrar's order of 10th March 1987.
We are told that the parties will have no difficulty in agreeing upon a schedule indicating the types of documents which fall to be disclosed under the Registrar's or, as the case may be, the judge's orders and, for the purposes of the argument, it was assumed that the difference lay in the fact that under the Registrar's order cheques drawn upon and paid out of the accounts of the named charity and of Mr Williams together with paying-in slips relating to payments to the credit of those accounts would be disclosable, whereas under the judge's order they would not.
The first Bankers' Book Evidence Act was enacted in 1876. Its purpose was set out in the long title: "Whereas serious inconvenience has been occasioned to bankers and also to the public by reasons of the ledgers and other account books having been removed from the banks for the purpose of being produced in legal proceedings:
"And whereas it is expedient to facilitate the proof of the transactions recorded in such ledgers and account books:
"Be it therefore enacted" etc. The way this was achieved was by providing that entries in the bank's books should be admissible as prima facie evidence of the "matters, transactions and...
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