1998/139 - Nationwide Building Society v Jadhav [1998] UR 139 (2 July 1998)

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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.

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I was told that the Halifax Building Society had now withdrawn its instructions because the sum involved in the transfer from its account had been relatively small.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:

"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 the 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."

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:

"A Mareva injunction should allow for all drawings relating to the defendant's reasonable living expenses, not exceeding a specified sum, which should take into account his special circumstances and expenses including nursing fees and payment of other specified accounts and payment on account of his Solicitors costs. The defendant may apply to vary the injunction accordingly. A distinction must be drawn between the ordinary Mareva jurisdiction and the much older Chancery jurisdiction to preserve a trust fund of which beneficial ownership was claimed. In the latter case, albeit rare that it can be so demonstrated satisfactorily at an interlocutory stage, there will be prejudice to a successful claimant in financing the defence; accordingly a judgment has to be made as to whether the injustice of permitting the use of funds by a defendant is out-weighed by possible injustice in denying him an opportunity to raise a defence".

"On an application by the defendant to be provided with the means to meet his legal expenses by a release of assets frozen by a Mareva injunction, the court should consider whether, if there is no such release, the defendant will be likely to obtain legal aid, and whether thereby an unjust burden will be imposed on public funds, or an injustice will be done to the successful applicant for the Mareva order".

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.

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

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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/139 - Nationwide Building Society v Jadhav [1998] UR 139 (2 July 1998) URL: http://www.bailii.org/je/cases/UR/1998/139.html Cite as: [1998] UR 139

Jersey Unreported Judgments