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England and Wales High Court (King's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Al-Muslimani v Ghazarian [2024] EWHC 3601 (KB) (09 December 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/3601.html Cite as: [2024] EWHC 3601 (KB) |
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KING'S BENCH DIVISION
Strand London |
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B e f o r e :
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HASSAN ALI BIN ALI AL-MUSLIMANI |
(Claimant) |
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- and - |
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HRACH GHAZARIAN |
(Defendant) |
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Ludgate House, 107-111 Fleet Street, London EC4A 2AB
Tel: 0330 100 5223 | Email: uk.transcripts@escribers.net | uk.escribers.net
MR J HAMILTON BARNS, appeared on behalf of the Defendant
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Crown Copyright ©
MASTER DAGNALL:
""3.4…
(2) The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings…"
"24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]/
"50 Excuses for non-notice and delay.
(1) Delay in giving notice of dishonour is excused where the delay is caused by circumstances beyond the control of the party giving notice, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate the notice must be given with reasonable diligence.
(2) Notice of dishonour is dispensed with—
(a) When, after the exercise of reasonable diligence, notice as required by this Act cannot be given to or does not reach the drawer or indorser sought to be charged:
(b) By waiver express or implied. Notice of dishonour may be waived before the time of giving notice has arrived, or after the omission to give due notice:
(c) As regards the drawer in the following cases, namely, (i) where drawer and drawee are the same person, (ii) where the drawee is a fictitious person or a person not having capacity to contract, (iii) where the drawer is the person to whom the bill is presented for payment, (iv) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill, (v) where the drawer has countermanded payment:
(d) As regards the indorser in the following cases, namely, (i) where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the bill, (ii) where the indorser is the person to whom the bill is presented for payment, (iii) where the bill was accepted or made for his accommodation."
"Ashhurst, J. As to the general rule; it has never been disputed, that the want of notice to the drawer after the dishonour of a bill is tantamount to payment by him; but that rule is not without exceptions, and particularly in the case mentioned by the plaintiff's counsel, that notice is not necessary to be given where the drawer has no effects in the hands of the drawee; for it is a fraud in itself, and if that can be proved, the notice may be dispensed with. In this case it appears that at the time of drawing the bill, the drawer, so far from having any effects in the hands of the drawee, was actually indebted to him to a large amount.
But even admitting this to be a general rule without any exception; it was certainly introduced for the benefit of the drawer. Now every rule may be waived by the person for whose benefit it is introduced. Under the circumstances of the present case the drawer must be considered as having waived this benefit, because the commission is founded on that creditor's debt, between whom and the drawer this transaction has happened; and his submitting to it is a waiver of the want of notice, and an admission of the debt; which admission the assignees have subsequently confirmed by bringing this action. Therefore I think that as the bankrupt himself has not chosen to take advantage of it by moving to supersede the commission, it does not now lie in the mouth of a third person to do so.
Buller, J. The last point may be laid entirely out of the case, because, unless the objection be well founded in the case of the bankrupt himself, it is immaterial to consider how far it was competent for a third person to take advantage of it. The case of Quantock and England does not apply. There the question was, whether a third person should be permitted to avail himself of the Statute of Limitations. There might be good reasons for disallowing it in that case, because the debt still remained in conscience. But here the question is, whether there was a sufficient debt to support the commission at the time when it issued.
The first point to be considered is, whether under these circumstances it was necessary to give notice within as short a time as could conveniently be done, that the bill was neither accepted nor paid. I am of opinion that no such notice was necessary. On the second trial of the cause of Tindal and Brown before me at Guildhall, the jury told me they found their verdict for the plaintiff on the ground that it had not appeared from the evidence that any injury had arisen to the party from want of notice. In consequence of which, upon the subsequent trial, I told the jury that where a bill was accepted, it was primâ facie evidence that there were effects of the drawer in the hands of the acceptor. The mistake of the jury on the former occasion had arisen from their taking it for granted that the drawer had not been injured by the want of notice, because he had not proved it, whereas that proof lay on the plaintiff to produce. And upon my mentioning this matter to the Court, they thought that if there were no effects in the hands of the acceptor, that would vary the question very much, as the drawer could not be hurt.
The law requires notice to be given for this reason, because it is presumed that the bill is drawn on account of the drawee's having effects of the drawer in his hands; and if the latter has notice that the bill is not accepted, or not paid, he may withdraw them immediately. But if he has no effects in the other's hands, then he cannot be injured for want of notice. Soon after I sat on this Bench I tried a cause at Guildhall, on a bill of exchange which was either drawn or accepted by a person residing in Holland, and a full special jury, under my direction, found a verdict for the plaintiff, notwithstanding no notice had been given to the drawer of the bill's having been dishonoured, because he had no effects in the hands of the person on whom the bill was drawn. That verdict never was objected to: and if it be proved on the part of the plaintiff that from the time the bill was drawn, till the time it became due, the drawer never had any effects of the drawee in his hands, I think notice to the drawer is not necessary; for he must know whether he had effects in the hands of the drawee or not; and if he had none, he had no right to draw upon him, and to expect payment from him; nor can he be injured by the non-payment of the bill, or the want of notice that it has been dishonoured. On these grounds I think the petitioning creditor's debt was sufficient to support the commission."
"Insufficient funds in drawee's hands
The most common instance of this arises in relation to cheques, where the bank, on whom the cheque is drawn, is under no obligation, as regards the drawer, to pay the cheque, as a result of there being insufficient funds in the drawer's account. Equally in relation to a stale cheque, a bank is not under an obligation to pay such a cheque and hence notice of dishonour is dispensed with. If the drawer has insufficient funds at any time during the currency of the bills in the hands of the drawee, the latter will be under no obligation to accept or, if he has accepted, to pay (vis-a-vis the drawer), and the drawer will have no remedy against the acceptor or any other person if he is obliged to pay the bill; not being therefore prejudiced by want of notice, the drawer cannot set that up as a defence. However this case was distinguished in a later decision, where it was held that notice of dishonour for the accommodation of an indorsee must be given to the drawer, though he had no effects in the hands of the acceptor, as, on receiptof notice, the drawer would be entitled to call on the indorsee for the money, whereas in the former case there was no person from whom the drawer would have been entitled to recover.
Further, at common law, in order to be liable without notice, the drawer must have had no remedy against the acceptor or any other person. Hence if a bill was drawn for the accommodation, not of the drawer, but of the acceptor, as the drawer might sue the acceptor, he was entitled to notice and if the drawer in such a case chose to pay without notice, he could not sue the acceptor for money paid to his use, although he might sue on the bill. So, it was no excuse for neglect to give notice to an indorser, that the drawer had no effects in the acceptor's hands. Nor would the absence of effects in the hands of the maker of a promissory note be any excuse for want of notice to the indorser, at all events unless the indorser was the person who was to pay, and who had no remedy over
against anyone; nor would it suffice to allege that he had not been damnified by the absence of notice.
An intimation from the drawee that he could not meet the bill, but that the drawer must take it up, does not relieve the holder from the necessity of giving the drawer notice. Where the acceptor remitted to the drawer a sum of money in part payment of his acceptance, it was held that such amount could be recovered by the holder as money paid to his use, but that he could not recover on the bill itself, since the drawer had received no notice.
The above cases do not appear to be affected by the 1882 Act s.50(2)(c) and (d).
At common law, though the drawer had no effects in the hands of the drawee, yet if he had any reasonable expectation that the bill would be honoured, he was held to be entitled to notice of dishonour, as if he had consigned goods to the drawee, though, in fact, they never came to hand, or had accepted bills for him, or where there was a fluctuating balance as between drawer and drawee.
The 1882 Act now, however, definitely provides that the question always is,whether the acceptor is obliged to pay and not whether the drawer expects that he will…"