13 / 338
that the annuitant had no aggregable estate was a
statement of opinion, but such a statement often
involves a statement of a material fact.
For that
possibility to arise one party had to be better
equipped with information or the means of infor–
mation than the other. Each case depended on its
facts and in this instance the principle applied. The
statement obviously and vitally affected the subject-
matter being offered for sale and anyone experienced
in dealing with such interests would be very much
alive to that. The statement was made by a well-
known firm of solicitors of standing and repute.
The language used would be intended to be under–
stood as implying and carried with it the represen–
tation that persons who knew the significance of
the matter and who were experienced and competent
to look into it were expressing a belief founded on
substantial and reasonable grounds. On the facts
the vendor's knowledge or means of knowledge
were far superior to those of the purchaser. It was
plain on the facts that the inquiries made formed no
basis whatever on which a responsible person could
put forward that view as an inducement to come and
buy the reversion. Counsel for the defendant had
submitted that even if that were so as far as the
solicitors were concerned, it was not unreasonable
for the vendor, relying on his advisers, to believe
that the annuitant had no aggregable estate. That
could not be right. The defendant had asserted the
belief, and he had to abide by the consequences.
Finally, it was clear that the purchaser had relied
on the representation.
Romer, L.J., and Ormerod, L.J., agreed.
(Brown
v.
Raphael [1958] 2 All E.R. 79, and (1958)
2. W.L.R. 647.)
A. solicitor, who persistently refuses to deliver accounts
relating to the property of his client, subsequently
adjudicated a bankrupt, to the official receiver as
trustee in bankruptcy of the client's property, may
be ordered by summons to do so by the Court under
the Bankruptcy Acts.
On 12th June, 1947, S., a solicitor, entered into
two contracts for the purchase of land as attorney
for a debtor. S. acted as attorney to and solicitor
of the debtor between I2th March, 1947 and 29th
November, 1947, after which the debtor revoked
S.'s power of attorney and determined his retainer
as solicitor. Later in 1947 the debtor issued a sum–
mons under R.S.C., Ord. 52, r. 25, against S. as his
former solicitor for an account, bills of costs, and
delivery of documents, and on i3th December, 1948,
the Master made an order therefor. S. purported
to comply with the order, but maintained that he
had received no money on behalf of the debtor in
respect of the two contracts, and that the debtor was
not entitled to further information about them. On
i8th September, 1950, a receiving order was made
against the debtor; on 24th October, 1950, the
debtor was adjudicated bankrupt, and in due course
the official receiver became his trustee in bankruptcy.
At that time there were no funds available in the
bankruptcy sufficient to enable the trustee to proceed
in the matter, but as soon as there were funds he
obtained his substitution for the debtor in the pro–
ceedings against S., and gave notice of intention
to proceed and to press for compliance with the
order of i3th December, 1948. On 151)1 October,
1954, the trustee applied under R.S.C., Ord. 52,
r. 25, for a further order as to accounts, etc., and a
twenty-one day order for an account to be verified
by affidavit was made by the master on 22nd October,
1954. On 29th October, 1954, the judge, on an
appeal by S., extended the time for delivery of the
account. After further extensions, S. delivered an
account which contained no details of the trans–
actions about the land, and the judge then made no
order, save as to costs, on S.'s appeal. On 2gth June,
1956, the trustee took out a summons for directions,
on which he asked for leave to cross-examine S.
and to surcharge and falsify the account if so advised,
but the Master, on loth April, 1957, made no order,
save as to costs, on the summons. The trustee then
obtained a summons under s. 25 (i) of the Bank–
ruptcy Act, 1914, directed to S., as a person capable
of giving information respecting the debtor's deal–
ings or property, to appear before the court for
examination. S. applied to set the summons aside,
contending
(a)
that the matter was
res judicata
by
the decisions under R.S.C., Ord. 52, r. 25 ;
(b)
that
the summons was an abuse of the process of the
court and was oppressive in that it covered the same
ground as the proceedings under R.S.C., Ord. 52,
r. 25 ;
and
(f)
that the trustee had been guilty of
inordinate delay, had been remiss in not appealing
against the order of loth April, 1957, and in not
insisting on an order for the cross-examination of
S. under R.S.C., Ord. 37, r. 20, and so should not
be allowed to use the inquisitorial machinery of
s. 25 against S.
The Court of Appeal (Jenkins, Romer and
Ormerod, JJ.) held that the summons should not
be set aside because :
(i) There was a wide difference between the
proceedings under R.S.C., Ord. 52, r. 25, and those
under s. 25 of the Bankruptcy Act, 1914; and,
though a claim for information about the trans–
actions of 12th June, 1947, had been raised in the
proceedings, under R.S.C., Ord. 52, r. 25, it had
not been adjudicated and therefore the matter was
not
res judicata.
(ii) There was no abuse of the process of the