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Cite as: [1987] IEHC 19
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Fincoriz S.A.S. v. Ansbacher Co. Ltd. & Ors [1987] IEHC 19 (20 March 1987)\
THE HIGH COURT
1987 No. 342p
BETWEEN:
FINCORIZ S.A.S. DI BRUNO TASSAN DIN e C
PLAINTIFFS
AND
ANSBACHER AND COMPANY LIMITED ARBOURFIELD LIMITED
AND BRUNO TASSAN DIN
DEFENDANTS
Judgment of Mr. Justice Lynch delivered the 20th day of March 1987.
This is an application by Notice of Motion dated the 11th February 1987 pursuant to Order 15 Rule 13 of the Rules of the Superior Courts brought by persons who are not parties to this action namely Banco Ambrosiano Andino S.A. (hereinafter called Andino) asking that they be joined as Defendants in this action. The Plaintiffs oppose the application.
The Plaintiffs have brought this action in order to establish their rights in or title to a fund of some 30 million U.S. dollars which was lodged with the first named Defendants in the name of the second named Defendants who are stated to be controlled by the third named Defendant. So far these proceedings are only at the Plenary Summons stage. Paragraph 2 of the Plenary Summons reads as follows:
"An Order directing the defendants to pay over the said monies to the order of the plaintiff as representing the proceeds or value of a sale of 10.2% of the shares of a company incorporated in Italy named Rizzoli Editore S.P.A. to which shares the plaintiff was entitled immediately prior to such sale."
Apart from the Plaintiffs in this action there are two other persons or bodies who are also claiming title to this fund of 30 million dollars. First there are the Applicants who obtained an injunction in proceedings brought by them against the above named Defendants (inter alios). That injunction was first obtained by Andino, the Applicants, on the P 3rd of January 1984 and is still subsisting.
Secondly, another company called Banco Ambrosiano S.P.A. (hereinafter called Baspa) likewise claims to be entitled to the said fund of 30 million dollars and that company brought proceedings against a number of Defendants including the above named Defendants and obtained an injunction on the 7th of September 1984 which is still subsisting. The injunctions obtained both by Andino and by Baspa prohibit the Defendants from parting with or transferring or otherwise disposing of the said fund of 30 million U.S. dollars or any part of it.
The Plaintiffs in this case obtained from this Court an interim injunction in January of this year prohibiting the above named Defendants from transferring or parting with or
otherwise disposing of the said fund or any part of it. That injunction is still continuing. The Plaintiffs' application for that injunction was grounded on an affidavit by professor
Riccardo Luzzatto sworn the 16th of January 1987 which makes it perfectly clear and especially by virtue of paragraph 9 of the said affidavit that one and the same fund of 30 million U.S. dollars is the subject matter of the three injunctions granted respectively to Andino, to Baspa and to the Plaintiffs in this action.
Prima facia a Plaintiff is entitled to sue whomsoever he wishes and is entitled not to have to sue a person that he does not wish to sue. Order 15 Rule 13 of the Rules of the Superior Courts so far as is relevant to the facts of this application provides as follows:
"The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added."
In order that a person may be joined as a Defendant without the consent and, a fortiori, against the wishes of the Plaintiff there must be some exceptional circumstances. The exceptional circumstances must be such that the added Defendants are persons who ought to have1 been joined as Defendants by the Plaintiff in the first instance or alternatively even if it was not unreasonable that they were not joined as Defendants by the Plaintiff in the first instance it is shown at the time of the application to the Court to join them that their presence before the Court will as a matter of probability be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter.
Assuming that the Plaintiffs win the present case, the result will have to be an Order for the payment of the fund of 30 million U.S. dollars by the Defendants to the Plaintiffs. If the injunctions granted in other proceedings to Andino and in yet further proceedings to Baspa are still subsisting then the Defendants and especially the first named Defendants who in a sense are mere stake ho 1 d e rswill be put in the impossible position of having an Order made against them in these proceedings to pay the monies to the Plaintiffs and Orders against them in the two other sets of proceedings not to part with the monies to anyone without the leave of the Court in those other proceedings respectively. In these circumstances it seems to me that the Court cannot in this action effectually and completely adjudicate upon and settle all questions involved in this cause or matter without the presence of Andino as parties to the action and also without the presence of Baspa as such parties. In these circumstances I make an Order not only joining as fourth Defendants Andino but also joining Baspa as fifth Defendants and I Order the amendment of the title to these proceedings accordingly by adding their names as fourth and fifth Defendants respectively.
I adjourn the motion until Tuesday the 7th of April 1987 to enable the parties to discuss if they wish to do so terms and conditions to be imposed on the parties arising out of the joinder of Andino and Baspa and to make submissions thereon. Subject to such discussions and submissions, it would be my present intention to impose the following terms and conditions namely:
1. Andino must pay the Plaintiffs1 costs of this motion.
2. I dispense with service of the Plenary Summons or amended Plenary Summons on Andino and I give them until the 21st of April 1987 to enter an appearance.
3. I direct that the Solicitors for Andino serve certified copies of the amended Plenary Summons and of this Order and of the motion and affidavits grounding this application on Baspa by delivering such certified copies to the Solicitors on record for Baspa in the existing proceedings in this jurisdiction to which Baspa are parties and in which they are awaiting judgment in the Supreme Court.
4. Baspa will have four weeks from the date of such service for entering an appearance and Andino's Solicitors are to file an affidavit of such service within two weeks thereof.
5. The Plaintiffs are not to be at liberty to serve a notice of discontinuance as against either of the added Defendants Andino or Baspa without leave of the
Court first obtained.
Provided that if Baspa should lose their appeal in the Supreme Court, then the Plaintiffs shall have liberty to serve notice of discontinuance as against Baspa and in that event Andino are to indemnify the Plaintiffs against any costs which the Plaintiffs may have to pay to Baspa.
7. Apart from the amendment of the title of the Plenary Summons already ordered, the Plaintiffs have liberty to amend the Indorsement of Claim on the Plenary Summons if they so wish. In that event the Plaintiffs must serve Andino by delivering a copy of the amended Plenary Summons with the amended Indorsement to Andino's Solicitors on record in these proceedings and deliver a copy of such amended Plenary Summons with amended Indorsement to Baspa in the same manner as already provided at condition 3 above.
8. I propose extending the time for the Plaintiffs to deliver their Statement of Claim to the existing Defendants, that is to say, the first, second and third Defendants up to the 15th of May 1987 and will extend the time for delivery of the Statement of Claim to the added Defendants to a period of six weeks from the date of entry of appearance by them respectively.
9. I extend the time for the delivery of defence or defence and counterclaim to six weeks1 from the date of delivery of the Statement of Claim to the five Defendants respectively.
Signed:
KEVIN LYNCH
APPEARANCES
For the Applicants: Peter Kelly S.C. and
B.L.
(instructed by Messrs. A & L Goodbody 1 Earlsfort Centre, Dublin 2 Solicitors)
For the Plaintiffs: Patrick Keane S.C. and B.L.
(instructed by Messrs. J.G. O'Connor & Co., 9 Clare Street, Dublin 2 Solicitors)
For the second and third Defendants: Ciaran Foley S.C. and
John McMenamin B.L.
(instructed by Messrs. Colum McKeown & Co., 10 Fitzwilliam Square, Dublin 2 Solicitors)
AUTHORITIES CITED
The White Book (1985 Edition) Volume I page 176.
Byrne .v. Browne (1889) 22 QBD 616.
Gurtner .v. Circuit (1968) 2 QBD 587.
Dollfus Mieg Et Compagnie S.A. .v. Bank of England (1950) 2 AER 605.
Atid Navigation .v. Fairplay Towage and Shipping Company (1955) 1 AER 698.
Amon .v. Raphael Tuck & Sons (1956) 1 AER 273.
Vandervell Trustees Ltd. .v. White and Others (1970) 3 AER 16.
Settlement Corporation and Others .v. Hochschild (1970) 1 AER 60.