Chemical Bank v McCormack

• Jurisdiction: Ireland
• Court: High Court
• Judge: Justice Carroll
• Judgment Date: 24 January 1983
• Neutral Citation: 1983 WJSC-HC 97
• Docket Number: No. 9985 P/1981
• Date: 24 January 1983

CHEMICAL BANK v. McCORMACK

BETWEEN

CHEMICAL BANK

PLAINTIFF

AND

PETER McCORMACK

DEFENDANT

1983 WJSC-HC 97

No. 9985 P/1981

THE HIGH COURT

Subject Headings:

BANKER: books

CONFLICT OF LAWS: documents

EVIDENCE: documents

PRACTICE: documents

STATUTE: application

1 Justice Carrolldelivered the 24th day of January, 1983

2 This is an Application by Allied Irish Bank ("A.I.B.") to vary an Order made by me on the 22nd October, 1982, by discharging so much of the Order as gave the Plaintiff liberty to inspect and take copies of entries in the Books of Allied Irish Banks Limited at its branch at Park Avenue, New York, United States of America and relating to the accounts of Consumark Incorporated and Consumark (Ireland) Limited at its branches at Dame Street, Dublin and 37/38 O'Connell Street, Dublin.

3 The relevant part of the Order is as follows:

"Upon the undertaking of the Plaintiffs by their Counsel not to avail of this Order against any Bank registered outside the jurisdiction of this Court"

4 It Is Ordered that the Plaintiffs be at liberty to inspectand take copies fop the purpose of this Action of all entries in the books of Allied Irish. Batiks Limited at their branches in Bame Street, Dublin, ³⁷/₃₈, O'Connell Street, and Park Avenue, New York, United States of America relating to the accounts of Consumark Incorporated and of Consumark Ireland Limited and the Defendant - but without liberty to operate against any lank incorporated outside the jurisdiction of this Court."

5 The background to the Order is that the Defendant, who is an Irish citizen, currently within the jurisdiction, is sued by the Plaintiffs in respect of fraud involving 800,000 dollars. In the Grounding Affidavit it is claimed that the Defendant is sole owner of a Company, Consumark Incorporated, of Bridgeport, Connecticut. This is not specifically controverted by the Defendant in his replying affidavit. It is alleged by the Plaintiffs that the fraud was committed through the vehicle of Consumark Incorporated} that the money obtained by fraud was paid into the account of Consumark Incorporated with E.F. Button Incorporated and portion of these monies was transferred from that account by the Defendant Into his personal account with A.I.B. New York. Subsequently 600,000 dollars were transferred by him by cheque presented to A.I.B. in Dublin drawn on his Hew York account.

6 The Defendant avers in his replying Affidavit that all the shares in Consumark (Ireland) Limited are owned by him.

7 The first matter which Mr.O'Neill raised was the jurisdiction of the Court to make the Order with extra territorial effect. The question of conflict between the two jurisdictions only arises if I decide that the Irish court has jurisdiction to make such an Order.

8 In support of his contention that the Irish Courts do not have jurisdiction, Mr. O'Neill cited a passage from Maxwell on Interpretation of Statutes (1946 Edition page 149) This states (excepting personal status or capacity) "In the absence of an intention clearly expressed or to be inferred from its language or from the object, subject matter or history of the enactment, the presumption is that Parliament does not design its Statutes to operate on its subjects beyond the territorial limits of the United Kingdom" This principle was applied in Tomalia -v-S. Pearson & Sons Limited I9O9 2KB 61 CEB Draner and Son Ltd. -y- Edward Turner & Son Ltd. & Qrs (1965) 1 KB 424 and A.G.for Alberta -v- Huggard. Assets Limited & Others 1953 AC 421.

9 Mr. O'Neill also cited R. -v- Crossman 1981 CAR 302. It is a case which bears some similarities with the present case.

10 The facts of that case were that an Isle of Man lank maintained an account with a branch of Barclays Bank in the Isle of Man which theyeffectively used as a clearing houses. An application was made to the Court in the Isle of Man for the inspection of this account in connection with a prosecution pending in Wales. The accused had used the I.O.M. Bank for the purpose of paying in cheques made out to a Company, J.B.K. Limited, and taking out monies in circumstances which led him to being charged with a criminal offence. The Court in the I.O.M. refused an Order. Application was made In England in the High Court directed to Barclays Bank, Head Office, not Barclays Bank, Isle of Man, to disclose the account in so far as it related to J.B.K. Limited under the English Act. The Order was granted but was reversed on appeal. The basis on which it was brought in England was as a personal order against Head Office, it being no answer for Bead Office to say they would have difficulty in getting Books from the Isle of Man.

11 Denning M.R. said that the question was whether the Courts England and Wales could make an Order under Section 7 of the Bankers Book Evidence Act 1879 so as to require the disclosure of accounts in the Books of Barclays Bank in the Isle of Man, the Isle of Man being outside thejurisdiction.

12 The case therefore posed an identical question to the present case except that there the Courts knew that the Isle of Man Courts disputedjurisdiction. In this ease I have so such evidence.

13 There is another difference in that the account in this ease is the account of the Defendant himself and of Companies which I am satisfied are the Defendant under another name. In the Grossman case, the account holder was a bank licensed under Manx laws.

14 Lord Denning decided Section 7 of the 1879 Act covered the proceedings in Wales and was wide enough to cover the account of other persons with the Bank but he then asked how far should the Statute be used for this purpose. He did not ask how far could the Statute beused.

15 He then goes on to say (at page 307)

"It is quite plain, that in the ordinary way, in civil litigation an order of this kind is only made against the account of the party who is involved in the...