The Gazette 1958-61

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. 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 Notice sent by registered post to a man's home not "served" on him if not received.

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