Montani v First Directors Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 03 March 2006 |
| Neutral Citation | [2006] IEHC 92 |
| Court | High Court |
| Date | 03 March 2006 |
[2006] IEHC 92
THE HIGH COURT
BETWEEN
AND
EEC REG 44/2001 CHAPTER II S2
EEC REG 44/2001 ART 5(3)
EEC REG 44/2001 ART 6(1)
EEC REG 44/2001 ART 5(3)
EEC REG 44/2001 ART 22(2)
CAMPBELL INTERNATIONAL TRADING HOUSE LTD v VAN AART 1992 2 IR 305 1992 ILRM 26
GANNON v BRITISH & IRISH STEAMPACKET CO LTD 1993 2 IR 359
EEC REG 1347/2000
CIVIL LIABILITY ACT 1961
EEC REG 44/2001 ART 28
SARRIO SA v KUWAIT INVESTMENT AUTHORITY 1999 1 AC 32
BRINKS & REES CIVIL JURISDICTIONS & JUDGMENTS 3ED 293
PRACTICE AND PROCEDURE
Jurisdiction
Contesting of jurisdiction - Onus of proof to establish jurisdiction - Whether claims so closely connected that expedient to hear and determine them together - Plea of conspiracy- Whether Brussels 2 Regulation applying to claim - Whether Irish courts having jurisdiction to hear and determine claim -Council Regulation (EC) No 44/2001, arts2(1), 6 and 22 - Gannon v British and Irish Steam Packet Company Ltd [1993] 2 IR 359 considered - Motion to decline jurisdiction and/or stay proceedings refused (2005/174P - Hanna J - 3/3/2006) [2006] IEHC 92 Montani v First Directors Ltd
Facts: The plaintiff sought inter alia a declaration of beneficial ownership of shares in a company and sought an order setting aside a transaction whereby the defendants transferred its interests in a company to the second and third named defendants. Related proceedings were issued in the Italian courts. The plaintiff contended that the Irish courts had jurisdiction pursuant to Council Regulation EC 44/2001 “Brussels 2” on the grounds that no proceedings existed between the parties in another contracting Member State arising from the same cause of action.
Held by Hanna J., that Brussels 2 was applicable to the proceedings, as it would be undesirable for different courts in different jurisdictions to be hearing related proceedings.
Reporter: E.F.
JUDGMENT delivered by Mr. Justice Hanna in Dublin on the 3rd day of March, 2006
The proceedings commenced on the 3rd of March, 2006, at 11.30am as follows:
Mr. Justice Hanna delivered judgment as follows:
Mr. Justice Hanna: This case involves the ownership of certain assets comprising, almost entirely, real property and related assets which are physically located in Italy. Those assets were accumulated over a number of years by the plaintiff's father, Aldo, and uncle, Armando, now both deceased. The ownership of the assets subsequently vested in an Italian limited-liability company, MG srl, and the shares in that company ended up being held by an Irish limited-liability company, Limited Securities Limited, hereinafter referred to as “Liberty”. This occurred in July, 1993 and the company was incorporated apparently for that purpose.
Liberty's shares, in turn, were vested in two limited-liability companies registered in the British Virgin Islands, First Directors Limited, the first named defendant, and First Nominees Limited.
Upon the death of Armando in 1997, the plaintiff claims that he and his brother, Bruno, equally inherited the shares in Liberty.
The plaintiff claims that, by virtue of a declaration of trust dated the 23rd October, 1997, his interest in Liberty was held in trust for him by the First Directors Company as nominee. The plaintiff alleges that as a result of a series of unlawful transactions, including conspiracy, the assets to which he is entitled, namely the 50% shareholding in Liberty, has been the subject of an unlawful attempt to put the assets beyond his reach.
The transactions, briefly stated, comprise a transfer of the shares in Liberty from directors to George Plowman, one of the defendants named in these proceedings, in July, 2001. In July, 2002, the shares were transferred to Julie Plowman, the daughter of George Plowman, also named as a defendant in these proceedings. In September, 2003, the shareholding in Liberty was transferred to the plaintiff's brother, Bruno. Bruno is not a party to these proceedings, but I understand an application is presently before the courts in this jurisdiction applying to join him as a co-defendant. On the 1st October, 2003, the shares were transferred from Bruno, the plaintiff's brother, to one Simonetta Martiradonna. She, currently, is bringing proceedings against various parties; I shall briefly refer to those subsequently.
It is important that I set out the dramatis personae in some little detail.
These alleged events have spawned a number of proceedings. Currently, there are three sets of civil proceedings before the courts in Italy and one set of criminal proceedings. One set of proceedings presently stands before the courts of Ireland and, for the sake of clarity and by way of an explanation for the involvement of the parties at the plaintiff's behest, I very briefly set out the details of the proceedings of the parties.
The Irish proceedings consist of Marco Montani as plaintiff and First Directors Limited, Julie Plowman, George Plowman and Raymond Kearney as defendants. An application was made to join liberty in these proceedings and was successful before the Master, and that order currently stands; one of the reliefs sought is an appeal against that order, seeking to set it aside.
In these proceedings, the plaintiff seeks a number of orders against the defendants, including, inter alia, a declaration that the plaintiff is the beneficial owner of 50% of the shares in Liberty. He also seeks an order setting aside a transaction whereby First Directors Limited transferred its interests in Liberty to Julie Plowman and George Plowman. Raymond Kearney is a company formation agent and he is also a defendant and he is joined in the proceedings as a result of his involvement, the plaintiff alleges, in the transfer of First Directors” shares in Liberty to Julie Plowman and George Plowman.
The plaintiff also seeks a declaration to the effect that First Directors Limited remains a trustee for the plaintiff in respect of what the plaintiff says are the proceeds of a wrongful disposal of the assets of Liberty. The plaintiff also seeks damages for conspiracy, breach of trust and for breach of duty. Included in that claim is a claim, inter alia, of conspiracy against the fourth defendant, albeit pleaded in the tersest way.
The plenary summons contains an endorsement inviting the Court to assume jurisdiction under the provisions of Chapter 2, s. 2, Articles 5(3), 6(1) and s. 6, Article 22(2) of the Council Regulation E. C./44/2001, hereinafter referred to as the “Brussels 2 Convention”, and says that "there are no proceedings between the parties herein pending in another contracting Member State arising from the said cause of action."
In the light of what I say hereafter, I think a question-mark has to be raised over the validity and propriety of that endorsement. That, however, may not be a matter to be dealt with by the court on this occasion.
The Italian proceedings comprise four sets of proceedings, including the criminal proceedings to which I have referred, and these latter proceedings are not of any materiality to the application with which we are presently dealing, but are, of course, of considerable importance in terms of the courts of Italy. The first set of proceedings were instituted on the 8th April, 2004, by Marco Montani against MG srl and Hi-Tech Solutions. These proceedings have the record number 34771/04. The second set of proceedings were instituted on the 8th July, 2004, by Aldo Montani and Marco Montani, and the defendants in those proceedings are Mg srl, Bruno Montani, Julie Plowman and one Alberto Placidi. These proceedings have record number 34775/04.
There are further proceedings involving one Simonetta Martiradonna, which I will leave to one side for the moment.
Now, in the proceedings to which I have referred, Aldo Montani and Marco Montani claim that Bruno Montani, with the complicity of Julie Plowman and George Plowman, unlawfully acquired the shares of Liberty. The proceedings seek orders that the Italian courts make a judicial assessment, so referred to in the translation of the proceedings, of the ownership of the shares of Liberty and protect the assets of Mg srl, which is a subsidiary of Liberty, and which, as I have said before, owns the substantial real property assets which are located in Italy, and I think specifically in Rome.
The further set of proceedings to which I referred were instituted on the 24th of May of last year, and have record number 836682/04, and the parties in these proceedings are Simonetta Martiradonna, Bruno Montani, Julie Plowman, George Plowman, Marco Montani, First Directors Limited and First Nominees Limited. Simonetta Martiradonna is, she alleges, the ultimate purchaser of Liberty Securities, and that she purchased from Bruno Montani.
Now, the reliefs sought are to be found in two motions: one bearing the date the 15th June, 2005, inviting the Court to decline jurisdiction in respect of the second and third defendants, and to place a stay, in the alternative, on the proceedings in respect of defendants 1 to 4. Another motion seeks to appeal an order of the Master made on the 25th November, 2005, joining liberty as a co-defendant. I note that this matter before the Master had been adjourned on a number of occasions while the Master waited for this matter to proceed.
Unfortunately, due to difficulties with the list, the matter did not proceed and the Master then proceeded to join Liberty as a party; hence, Liberty is before this Court, though as of right now, has scarcely had time to draw breath in the proceedings, let alone get meaningfully involved.
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