14 / 338
Court and no oppression, for S., as former solicitor
and attorney of the debtor, was under a duty to give
the information sought, which was material to the
debtor's affairs, but had consistently denied the right
to the information.
(iii) Though the transactions in question took
place more than ten years ago the lapse of time was
no bar to the application as the respondent thereto,
S., was responsible for the delay.
Appeal from order of Registrar dismissed.
Per Jenkins, L.J. : There is a wide difference
between the two forms of proceeding with which
we are here concerned both as to their subject-
matter and as to their effect. R.S.C., Ord. 52, r: 25,
deals with cases where the relationship of solicitor
and client exists or has existed and where the client
seeks an account from his solicitor or former solicitor
The whole object and scope of it is directed to
providing a summary means of causing solicitors to
account for cash and securities in their hands and
the like. Section 25 of the Bankruptcy Act, 1914,
is by no means confined to persons who are account–
able to the trustee through their relationship with
the debtor. The section is couched in wide language
and it covers cases in which it appears that the person
proposed to be examined is in a position to give
information which is material for the purpose of
getting in the debtor's estate and winding it us. The
two forms of proceeding are widely different, and
it would be very difficult to hold that refusal of a
claim against a solicitor for an account based on the
relationship of solicitor and client which existed
between a debtor and the solicitor concerned would
necessarily and in all circumstances preclude the
trustee from having recourse to the provisions of
s. 25 of the Bankruptcy Act, 1914, with respect to
the same individual if the court had solid ground for
the opinion that that individual was in a position
to provide material information in regard to the
bankrupt's affairs.
Next, as to the proceedings under s. 25 being an
abuse of the process of the court, in my view there
is no substance at all in that contention. Recourse
to s. 25 of the Bankruptcy Act, 1914, was necessi–
tated by the appellant's consistent refusal to give
any information about the Denham property in the
proceedings under R.S.C., Ord. 52, r. 25. It seems
to me that the trustee was, in effect, faced with the
alternatives of abandoning his attempt to get infor–
mation about the Denham property altogether or of
applying under s. 25.
If the appellant dislikes the
idea effacing proceedings under s. 25., he has only
himself to thank :
a quite short and simple explana–
tion in an affidavit would have completely averted
the necessity. The appellant alleges that with respect
to
the land at Denham, the sale was in fact completed
by conveyance to somebody else in such a way that
no money became clue to the debtor, and, as I
understand it, no money of the debtor's was ex–
pended. He says that he furnished a completion
statement to the debtor's former solicitors showing
that that was so. But, even if he did, that statement
is not available to the trustee, who has not been able
to get a sight of it, and I see no reason why the
appellant should not simply have stated his account
of that matter in an affidavit. That could have been
quite shortly and simply done.
Then there is the allegation of oppression. For
similar reasons it seems to me that there is really no
substance in that. The appellant from first to last
knew what was expected of him, and, indeed, ought
to have known that, as the former solicitor and
attorney of the debtor, he was under a duty to give
the information sought, and he chose not to give it,
and so he now finds himself faced with the prospect
of an examination under s. 25 which, if he carried
out his plain duty, would have been averted.
Finally, there is the matter of delay.
I confess
that when this case was first opened I was impressed
by the great lapse of time which has occurred since
the events now sought to be investigated ;
but
counsel for the trustee took us through the history
of the matter, and he has succeeded in satisfying me
that over the whole period the delay was really
caused more by the Fabian tactics of the appellant
in his determination to avoid giving any information
if he could help it than by any remissness on the
part of the trustee. In the earlier part of the period
the trustee was in the difficulty that he could not
move in the matter without funds, and that accounts
for a certain amount of initial delay ; but when once
he was fully seized of the matter and possessed of
funds it does not seem to me that he can really be
saddled with any great part of the responsibility for
the delay which, for my part, I think was mainly
due to the appellant.
(In re a Debtor ex parte Swirsky (1958) i All E. R.
581.
Notice sent by registered post to a man's home not
"served" on him if not received.
The Lord Chief Justice, Mr. Justice Hilbery, and
Mr. Justice Donovan dismissed this appeal by the
prosecutor from a decision of Mr. R. H. Blundell,
metropolitan magistrate sitting at Bow Street, dis–
missing an information preferred against Mr. George
Robert Davies, omnibus driver alleging careless
driving on loth June, 1957. The prosecutor con–
tended that notice of the intended prosecution had
been " served on or sent by registered post to "
the defendant within 14 days of the accident; but
the magistrate held that it had not, and that section 21