High Court of Ireland Decisions

Banco Ambrosiano Andino SA v. Ansbacher & Co. Ltd. [1987] IEHC 7 (19 June 1987)\

THE HIGH COURT

Action No. l. Record No. 1983 No. 8987P

BETWEEN

BANCO AMBROSIANO ANDINO S.A.

PLAINTIFF

AND

ANSBACHER AND COMPANY LIMITED

AND BY ORDER

ROBERT FRIEDMAN, ANDRE DE PFYFFER, ANTONIA CORI, BRUNO TASSAN DIN AND ARBORFIELD LIMITED

DEFENDANT

Action No.2. Record No. 1984 No. 5853P

BETWEEN

BANCO AMBROSIANO S.P.A.

(IN COMPULSORY ADMINISTRATIVE LIQUIDATION)

LANFRANCO GERINI, FELICE MARTINELLI AND FRANCO SPREAFICO

PLAINTIFFS

AND

ANSBACHER AND COMPANY LIMITED, BRUNO TASSAN DIN, ANTONIA CORI, ROBERT FRIEDMAN, ANDRE DE PFYFFER AND ARBORFIELD LIMITED

DEFENDANTS

Judgment of Mr. Justice Lynch delivered the 19th day of June 1987.

This is an application brought on behalf of the Plaintiffs in the second named action in the title hereof (which Plaintiffs are hereinafter referred to as Baspa) for directions as to the mode of trial of the issues outstanding between them and the Plaintiffs in the first named action in the title hereof (which Plaintiffs are hereinafter referred to as Andino). The matter was argued before me on the 22nd day of May 1987 in the presence of Counsel for both Plaintiffs and Counsel for the Defendants Bruno Tassan Din and Arborfield Limited.

Both actions relate to the same fund of more than U.S. $30,000,000 which is held by Ansbacher and Company Limited in the name of Arborfield Limited. The Andino proceedings commenced by a Plenary Summons issued on the 27th of December 1983 and the Baspa proceedings commenced by a Plenary Summons issued on the 24th of July 1984. Injunctions were obtained by the Plaintiffs in each of these two actions against any disposal of the funds or any part thereof by Ansbacher and Company Limited pending the outcome of the actions. The injunction in the Andino proceedings was granted on the 3rd of January 1984 and in the Baspa proceedings on the 7th of September 1984.

An application was made to consolidate the two actions and on the 18th of December 1984 an Order was made by Carroll J. that:

"Both the above mentioned actions be heard together and that all issues between the respective Plaintiffs in said actions be decided subsequent to the trial of said actions with liberty to formulate said issues before or after the said trial."

Approximately a year later on the 4th of December 1985 a further Order was made by Carroll J. that the issues to be tried between the two Plaintiffs should be in the event of the Court deciding that the Defendants in the Andino proceedings and in the Baspa proceedings are not entitled to all or any of the moneys in suit in those proceedings then which of the aforesaid Plaintiffs are entitled to the said moneys or in the event of the Court deciding that some or all of the Defendants are entitled to part of the moneys in suit then which of the aforesaid Plaintiffs are entitled to the balance and further ordered that the trial of the said issues be heard in accordance with the terms of the Order of the 18th of December 1984 with Baspa as Plaintiffs and Andino as Defendant.

The two actions entitled as above came on for hearing before the President of the High Court in February 1986 whereupon it was announced to the President that the Andino proceedings had been settled between the parties thereto and an Order was made on the 4th of February 1986 that the matter be adjourned generally with liberty to re-enter. The Baspa action then commenced before the President of the High Court and was ultimately determined by the Supreme Court on the 8th of April 1987 in favour of Baspa. By its Order dated the 8th of April 1987 the Supreme Court declared, ordered and adjudged in favour of Baspa as agaisnt Bruno Tassan Din and Arborfield Limited in respect of the sum of U.S. $30,971,350 held by Ansbacher and Company Limited at its branch at 52 Lr. Leeson Street Dublin to the credit of Arborfield Limited and that Baspa are entitled to the same together with net accretions of interest and capital since the date of deposit reserving the rights of any other persons or bodies (other than Bruno Tassan Din and Arborfield Limited) claiming to be entitled to the said moneys including the rights of Andino.

The main point argued before me on the 22nd of May 1987 was as to which of the two Plaintiffs should be Plaintiff in the issue between them and which Defendant and as to whether the Orders of Carroll J. of the 18th of December 1984 and the 4th of December 1985 regarding that matter were still operative and binding.

Irrespective of the judgment and Order of the Supreme Court I am satisfied that the Orders of Carroll J. can no longer govern the position which now obtains because:

(1) Both of the actions were not tried as envisaged by the Order of the 18th of December 1984 - only one action was tried and the other was adjourned generally with liberty to re-enter.

(2) The Court did not "decide" anything in the Andino proceedings regarding the Defendants' rights or absence of rights to the fund in question.

Counsel for Bruno Tassan Din and Arborfield Limited stated to me that he would consent to judgment in favour of Andino for 70% of the funds and that on giving such judgment this Court would then have decided the position of the Defendants in the Andino proceedings. I declined to give such judgment. Bruno Tassan Din and Arborfield Limited were declared by the Supreme Court to have no title to any part of such funds. It is easy for a person who has no right or title to a fund to consent to an Order in favour of another person and such consent and a judgment based thereon is and would be nugatory. In any event it seems to me that a judgment by consent is not the same as a decision of the Court. A judgment by consent results from a decision of the parties whereas when the Court decides the matter after a hearing the judgment is on foot of a decision of the Court and that is what was envisaged by the Order of the 4th of December 1985.

It follows that the Orders of Carroll J. regarding the trial of the issue as between the two Plaintiffs and as who should be Plaintiff and who should be Defendant in the trial of such issues no longer can govern the position between the respective Plaintiffs in the two actions entitled as above. There are therefore no valid directions regarding the disposal of the issues between the Plaintiffs now subsisting.

The Order of the Supreme Court declares the rights of Baspa as against Bruno Tassan Din and Arborfield Limited. The funds in question were deposited with Ansbacher and Company Limited in the name of Arborfield Limited which is a company controlled by Bruno Tassan Din. The effect of the Order of the Supreme Court is that Baspa's title to the funds is established subject to the rights of other parties (other than Bruno Tassan Din and Arborfield Limited) claiming to be entitled to the said moneys. In these circumstances it seems to me that Baspa now have possession of the funds still subject though they are to injunctions against any disposal of them out of Ansbacher and Company Limited. If other people wish to claim that they have a better title to the funds than Baspa it is up to such other people to make and prove their claim if they are to obtain payment of the funds or any part of it. I therefore come to the conclusion that in the issues as between the above two Plaintiffs respectively Andino must be Plaintiff and Baspa Defendants.

Having come to that conclusion I think that it is appropriate forthwith to give directions as to the pleadings which ought to take place between the two respective Plaintiffs and the time limits therefor. These directions however will be subject to any submissions which Counsel for the respective Plaintiffs may wish to make.

Subject to such submissions and the possibility of variations arising therefrom Andino must deliver a statement of their claim as against Baspa not later than the 7th of August 1987. Baspa must deliver a statement of their defence to Andino's claim not later than the 16th of September 1987. Andino must deliver their reply (if any) not later than the 2nd of October 1987 and must set down the issues for trial not later than the 12th of October 1987.

All parties shall have liberty to apply and the costs will be reserved.