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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AJ Bekhor & Company Ltd. v Bilton  EWCA Civ 8 (06 February 1981)
Cite as:  Com LR 50,  2 WLR 601,  QB 923,  EWCA Civ 8,  2 All ER 565,  1 Lloyd's Rep 491
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COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Parker)
B e f o r e :
LORD JUSTICE ACKNER
LORD JUSTICE GRIFFITHS
| A. J. BEKHOR & COMPANY LIMITED
|- and -
|GODFREY DEREK ERNEST BILTON
, Room 392, Royal Courts of Justice, and 2 New Square,
Lincoln's Inn, London WC2).
appeared on behalf of the Respondents (Plaintiffs).
MR. R. A. GATEHOUSE, QC. and MR. G.M. NEWMAN (instructed by Messrs Harbottle & Lewis, solicitors, London)
appeared on behalf of the Appellant (Defendant).
Crown Copyright ©
Upon the defendant by his counsel undertaking "(i) to withdraw his appeal to the Court of Appeal under Notice of Motion dated 1st April 1980 and (ii) not to change the investment of his assets within the jurisdiction so as to be likely to depreciate their value
IT IS ORDERED:
(1) That the Order dated 18th March 1980 and the Injunction thereby granted be varied by allowing the Defendant to remove from the jurisdiction:
(a) personal possessions to the value of not exceeding £5,000
(b) his Citroen Motor Car; and
(c) the sum of £1,250 per month" (viz £15,000 per year) "out of the income from his United Kingdom investments for living purposes."
(1) disclose the full value of his assets within the jurisdiction as at
(a) 11th March 1980,
(b) 28th April 1980,
(c) the date of the affidavit;
(2) identify with full particularity, the nature of his assets, including the identity of all bank or other accounts in his name and the sums presently standing in each account;
(3) disclose insofar as the value of his assets do not now total between £217,000 and £250,000, all facts within his knowledge as to the present whereabouts of any assets said on 28 April 1980 to be included in that total, but not now so included, how and when those assets came to be changed and/or disposed of;
(4) identify in a written schedule, all relevant documents material to the value, distribution, and disposal and/or change of his assets between 11th March and the date of the affidavit.
|(a) Freehold agricultural land||£75,000|
|(b) Bank account||3,500|
|(c) A helicopter||48,000|
(he said the helicopter was in fact worth £65,000 but he was purchasing it under a financial agreement, which he did not detail but in respect of which he said there was approximately £17,000 outstanding)
|(d) A farm tractor||6,500|
|(e) A debt owed to him||7,000|
|(f) Share and Loan Capital in Lowe Music Limited||10,000|
|(g) Money held by solicitors on account of costs||4,160|
THE MAREVA JURISDICTION
"A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient."
(a) whether an order should be made that if the sum of £383,872 was no longer in WL's account at the bank, each defendant should disclose all facts within their knowledge as to the present whereabouts of that sum, and
(b) whether an order should be made requiring all the defendants to disclose to the plaintiffs forthwith, the sums at present standing in accounts in the names of any of the first five defendants or WL at the bank.
"The court of equity has never hesitated to use the strongest power to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears by the time the action comes to trial, equity will have been invoked in vain."
"Now the exercise of this jurisdiction may lead to many problems. The defendant may have more than one asset within the jurisdiction, for example he may have a number of bank accounts. The plaintiff does not know how much, if anything, is in any of them nor does each of the defendant bankers know what is in the other accounts. Without information about the state of each account it is difficult, if not impossible, to operate the Mareva jurisdiction properly; for example, if each banker prevents any drawing from his account to the limit of the sum claimed, the defendant will be treated oppressively, and the plaintiff may be held liable on his undertaking in damages. Again, there may be a single claim against a number of defendants; in that event the same difficulty may arise. Furthermore, the very generality of the order creates difficulty for the defendant's bankers, who may for example be unaware of the existence of other assets of the defendant's within the jurisdiction; indeed, if a more specific order is possible, it may give much needed protection for the defendant's bankers, who are after all simply the innocent holders of one form of the defendant's assets.
..... Furthermore, for the purposes of the Mareva jurisdiction, since this is a case involving a number of defendants, it is necessary for the proper exercise of that jurisdiction to know how much money is standing in the identified bank account; if, for example, that account should be unencumbered and in excess of the plaintiff's claim, the Mareva Injunction can be restricted to that amount."
He then went on to consider the source of that power. He said at page 351:
"That the court has power to order discovery of particular documents and interrogatories at an early stage of proceedings is, I think, not in doubt. I refer in particular to RSC Ord 24, 47(1) in relation to discovery of documents, and to the general terms of RSC Ord 26, r 1(1) in relation to interrogatories. If necessary, however, the court's power to make an appropriate Order in aid of a Mareva Injunction can be derived from the power to make mandatory Orders conferred on the court by Section 45 of the Supreme Court of Judicature (Consolidation) Act 1925."
RULES OF THE SUPREME COURT
(a) for leave to issue a writ against the shipowner and to serve a notice of it out of the jurisdiction, and
(b) for an immediate interim injunction to restrain the shipowners from disposing of their assets within the jurisdiction of the High Court, including, in particular, the insurance proceeds in respect of the loss of the Siskina.
THE ORDER MADE IN THIS CASE
(a) the names and addresses of persons who supplied the cassettes and customers who bought them;
(b) all invoices and other documents relating to the cassettes; and
(c) the whereabouts of all pirate cassettes and master copies known to the defendants.
"The High Court may grant a mandamus or an injunction or appoint a Receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do".
"'Action' means a civil proceeding commenced by writ or in such other manner as may be prescribed by Rules of Court, but it does not include a criminal proceeding by the Crown."
"'Cause' includes any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding by the Crown".
"'Matter' includes every proceeding in court not in a cause."
Appeal allowed. Costs of the appeal to be costs in the cause.