Jersey Unreported Judgments

Court of Appeal

2 July 1998

Before: Sir Philip Bailhache, Bailiff, Single Judge

Between Nationwide Building SocietyPlaintiff

And Avinash Laxman Jadhav Defendant

And Abbey National Treasury International Ltd Party Cited

Application by the Plaintiff: (1) for leave to appeal against so much of the Order of the Royal Court of 23 June 1998, [1998.131] as varied the injunction set out in the Order of Justice, so that £15,000 might be deposited with the Defendants advocates by the Party Cited; and (2) if such application were granted, for a stay of execution of the Order of 23 June 1998, pending determination of the appeal.

Advocate KO Dixon for the Plaintiff

Advocate DMC Sowden for the Defendant

JUDGMENT

THE BAILIFF: This is an application by Nationwide Building Society for leave to appeal against an Order of the Royal Court dated 23 June 1998, allowing the sum of £15,000 to be released to the defendant for legal and living expenses, and for a stay pending determination of the appeal.

Counsel for the applicant submitted that there had been two material changes since the Inferior Number delivered judgment; the first was that at the time of the hearing counsel held instructions from the Nationwide Building Society, the Abbey National and the Halifax, all of which building societies had held accounts from which transfers had been made to the injuncted account at Abbey National Treasury International Limited, in Jersey.

I was told that the Halifax Building Society had now withdrawn its instructions because the sum involved in the transfer from its account had been relatively small. I was also informed that the Abbey National had given instructions to counsel to issue proceedings against the defendant and that a second Order of Justice was shortly to be served upon him.

The second material change to which my attention was drawn was that at the time of the hearing before the Inferior Number, there was not available to the Court any report from a handwriting expert. A report was now available and was appended to an affidavit sworn by Richard John Williams, the Claims Manager to solicitors to the applicant.

This report by Mr Michael Handy showed that the signatures on the contested documents were different from the signatures on the specimen documents to which he had been referred. His conclusion was that there was evidence that signatures on some of the documents in question were not made by Mrs Jadhav, the wife of the defendant. The difficulty here is, however, that the specimen signatures upon which Mr Handys opinion was based were themselves provided after the dispute between Mr and Mrs Jadhav as to the authenticity of the challenged signatures had arisen.

Miss Sowden told me that she had commissioned a report from another handwriting expert to whom earlier examples of the signature of Mrs Jadhav would be given. In short, it appears to me that the expert evidence at this stage is not by any means conclusive as to the matters in dispute between the parties.

I return therefore to the decision of the Inferior Number on this interlocutory point. The Order of Justice contains a passage in the following terms:

Miss Sowden submitted that her application before the Inferior Number had in effect been to compel the plaintiff to do that which it had agreed should be done at the time when the application for a Mareva Injunction was made. She had submitted a note of legal fees incurred by the defendant and agreement to the payment of those fees had not been forthcoming. Mr Dixons principal response to that was that this was a proprietary claim for monies which belonged to the plaintiff, and that no sufficient ground had been shown to justify the payment requested. He also made the point that the paragraph in the Order of Justice referred to legal expenses and not to living expenses, and that the Inferior Number had clearly made an order which embraced both types of expense.

I was referred to passages in the White Book at paragraph 29/1/25 in the following terms:

And further down in the same paragraph:

It is to be noted that the amount claimed by the applicant is approximately £118,000, whereas the injuncted account contains £143,000. It is true that the other proceedings, which are about to be instituted, to which counsel for the applicant referred, will involve a claim for a further £18,000 approximately.

In my judgment the Royal Court gave consideration to all these matters and carried out the balancing exercises which it was obliged to do. No sufficient grounds have been shown why the Royal Courts exercise of its discretion should be set aside.

The applications for leave to appeal and for a stay pending determination of the appeal are accordingly refused.

Authorities

RSC (1997 Ed'n): Vol.1: pp.1014-1016; O.29; r.1: pp.512-520

Court of Appeal (Civil) (Jersey) Rules, 1964: Rule 15

In re Blue Horizon Holidays, Ltd. (1994) JLR 173

Gee: "Mareva Injunctions and Anton Pillar Relief". (4^th Ed'n): pp.35-39, 140-159, 287-300