The Gazette 1958-61

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

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