ROYAL COURT
(Samedi Division)
23 June 1998
Before: FC Hamon, Esq., Deputy Bailiff
and Jurats Myles and Tibbo
Between Nationwide Building Society Plaintiff
And Avinash Laxman Jadhav Defendant
And Abbey National Treasury International Ltd Party Cited
Application by the Defendant to raise injunction.
Advocate KO Dixon for the Plaintiff
Advocate DMC Sowden for the Defendant
JUDGMENT
THE DEPUTY BAILIFF: This is an application by Dr. Avinash Laxman Jadhav to lift an injunction obtained on 29 May 1998, by the Nationwide Building Society. Originally the action had been started by Dr Jadhavs wife, but this action was withdrawn when Mrs. Jadhav asked the Nationwide Special Investigation Dept. in her words "to kindly take the necessary action" against Dr Jadhav.
We will not go into great detail in this short judgment, but suffice it to say that monies were transferred from the Plaintiff Building Society to the Party Cited, Abbey National Treasury International Limited, it is alleged on forged letters of instruction. We still await the opinion of a handwriting expert in the United Kingdom. His opinion, according to Advocate Dixon, is expected at any time. Of course we do not know what information was supplied, nor what his prognosis is likely to be.
A set of documents presented to us by Advocate Dixon, marking signatures which he claims are forged to be compared with signatures which he claims are genuine, is not an exercise in comparison for this Court to undertake. Much will depend on the decision of the expert and we will adjourn for further hearing the summons for lifting until we have that opinion available. Of course Dr Jadhav may wish to obtain his own expert if he does not agree, but that, of course, may incur further costs and may work for or against his cause.
The amount enjoined is £117,654.74 and there is some £143,000 in total transferred. But the surplus comes from two other Banks, £4,431 from the Halifax Building Society and £18,000 from Abbey National outside of this jurisdiction. Mr Dixon says that these Banks may also bring claims but we must note that they have not yet done so.
In 4 Halsbury 3(1) on the business of ‘Banking’ we have this at paragraph 182:
"A banker who has paid a bill on a forged acceptance may not charge his customer with the amount, unless the customer is precluded by estoppel or adoption from disputing his signature.
A banker who has paid a bill on a forged indorsement may not charge his customer unless the customer is estopped from disputing the payment. Negligence on the part of the customer directly leading to or enabling the loss, or a representation made to the banker by the customer on a material point on which the banker acted by paying money which he would not otherwise have paid, might constitute such estoppel. Acceptance of a bill on which the payees indorsement has been forged does not, however, stop the customer from refusing to be debited."
And then:
"Where a banker has paid a bill on a forged indorsement, he is liable for the amount to the true owner in conversion or for money had and received."
The true owner, for banking purposes, has to be Mrs Jadhav, although we have a detailed affidavit from Dr Jadhav which gives an explanation which can be very briefly summarised. Unlike his wife he is a fully qualified Orthopaedic Surgeon and the monies are basically his savings which he put into his wifes name for tax avoidance purposes. An internecine war has broken out and the wife’s parents are causing strife. Dr Jadhav is still, apparently, very fond of his wife and is hoping that matters can be resolved. If that is so it seems tragic that this escalating rift will only serve to dissipate family assets.
When Nationwide brought its Order of Justice there was contained in it this Order:
"Nothing in this order shall prevent the Defendant from making such payments in respect of its reasonable legal fees and legal costs of defending these or any other proceedings or receiving legal advice in contemplation of legal proceedings brought or intended to be brought by them provided that the amount of and source of such payment has first been notified to the Plaintiff’s Advocate not less than 48 hours prior to the making of the same."
We have had full regard to our duties in varying injunctions and to those matters given to us in his very careful address by Advocate Dixon. In particular, he has referred us to passages from Steven Gee: "Mareva Injunctions and Anton Piller Relief" (4th Ed’n) pp.318-326. At p.321 it says this:
"The court is in principle anxious to ensure that a defendant is not deprived of professional legal representation by reason of Mareva relief. So a variation may still be permitted to allow expenditure by the defendant on lawyers in England or abroad, even when it is arguable that the assets belong to the plaintiff or a third party, although this is to be taken into account in exercising the discretion. Where there are assets which may belong to the plaintiff, the court will not allow those funds to be used for legal costs until the defendant has shown that he has no other assets which can be used for this purpose. But even if the defendant shows this, the court must make a difficult decision in the exercise of its discretion as to what is to be done. If, within the reasonable confines of an interlocutory application, the plaintiff can demonstrate a strong probability that his proprietary claim to the assets is well founded, this must be taken into account in the court’s decision whether, and if so on what terms, any variation is to be permitted."
It is correct for Advocate Dixon to say that Dr Jadhavs affidavit is not truly sufficient. But we heard this morning from Advocate Sowden that her firm’s interim legal fees amount to £3,000. A handwriting expert would be looking at something in the region of £1,000 and he owes some £4,500 to friends with whom he is living in the United Kingdom and we think, looking at it objectively, that £15,000 would be sufficient as an initial sum to cover his immediate expenses.
We can see no reason why we should not exercise our discretion in that way and we accordingly order that £15,000 should be paid to Crill Canavan within three days by the Party Cited. We are not going to order more, although there is a surplus, because of the serious allegation of forgery made by the Plaintiff on which we cannot, at this stage, make any comment.
We have to say that Advocate Dixons point about Dr Jadhav obtaining legal aid in our view is not appropriate simply because these are family assets and the proprietary right of the Plaintiff has, as its justification, to reinstate Mrs Jadhav into the funds that were in her name for reasons which have been made very clear to us. We make that Order accordingly. At this stage we are not going to make an order as to costs, Mr Dixon, because we anticipate that you are going to come back to us when the handwriting matters are available. If you do not come back to us for the reason that the matter is settled then, of course, you can very briefly if you wish make an application for the costs of this hearing at that time.
Authorities
Gee: Mareva Injunctions and Anton Pillar Relief (3rd Ed’n): p.p. 35 - 39, 140 - 159, 287 - 300, 318 - 326.
4 Halsbury 16: paras 163 - 190, 964.
R.S.C. (1997 Ed'n) 0.29, r.1: p.p. 512 - 20.
Barclays Bank plc -v- G. Thorpe, R. Thorpe and Chase Manhattan Bank (1995 ) JLR 184
Bapiste Builders -v- Smith et al ( 1 August, 1995 ) Jersey Unreported
Iraqi Ministry of Defence -v- Arcepey Shipping Company SA ("The Angel Bell") (1980) 1All ER 480 QBD
A -v- C (No 2 ) (1981) 2 All ER 126 QBD
PCW (Underwriting Agencies) Ltd -v- Dixon (1983) All ER 158 QBD
Fitzgerald -v- Williams [1996] QB657 CA
Snell’s "Equity" (29th ed’n): pp 297 - 305
In re PKT Consultants ( Jersey) Limited (1 August 1991 ) Jersey Unreported
Brink’s-MAT Ltd -v- Elcombe and Others ( 1998) 3 All ER 188 CA
Nos 12 and 13 Britannia Place Ltd -v- J & G (Property) Ltd and Others (1989) JLR 34.