Tassan Din v Banco Ambrossiano S.P.A.

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1991
• Neutral Citation: 1991 WJSC-HC 334
• Court: High Court
• Docket Number: [1989 No. 3142P],No. 3142p/1989
• Date: 01 January 1991

DIN v. BANCO AMBROSIANO SPA

BETWEEN

BRUNO TASSAN DIN AND ARBORFIELD LIMITED

PLAINTIFFS

AND

BANCO AMBROSIANO S.P.A., LANFRANCO GERINI, FELICE MARTINELLI AND FRANCO SPREAFICO

DEFENDANTS

1991 WJSC-HC 334

No. 3142p/1989

THE HIGH COURT

Synopsis:

HIGH COURT

Jurisdiction

Supreme Court - Decision - Review - Fraud - Pleadings - Action to cancel decision - (1989/3142 P - Murphy J. - 30/11/90) 1991 1 IR 569

|Din v. Banco Ambrosiano S.P.A.|

PRACTICE

Pleadings

Fraud - Allegation - Details - Necessity - Supreme Court - Decision - Action to cancel decision - (1989/3142 P - Murphy J. - 30/11/90) - [1991] 1 I.R. 569

|Din v. Banco Ambrosiano S.P.A.|

SUPREME COURT

Decision

Finality - Document - Concealment - New evidence - Relevance - Fraud to be pleaded with particularity - (1989/3142 P - Murphy J. - 30/11/90) - [1991] 1 I.R. 569

|Din v. Banco Ambrosiano S.P.A.|

ACTION

Cause

Absence - ~Res judicata~ - Claim - Dismissal - Supreme Court - Decision - Finality - Fraud - Pleadings - Lack of detail - Subsequent discovery of further evidence - Relevance - Unsuccessful attempt to cancel decision of Supreme Court - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, s. 3 - (1989/3142 P - Murphy J. - 30/11/90) - [1991] 1 I.R. 569

|Din v. Banco Ambrosiano S.P.A.|

CONSTITUTION

Courts

Supreme Court - Decision - Finality - New evidence - Relevance - Fraud to be pleaded with particularity - (1989/3142 P - Murphy J. - 31/11/90) - [1991] 1 I.R. 569

|Din v. Banco Amrosiano S.P.A.|

Citations:

BLAIR V CRAWFORD 1906 1 IR 578

MULGREW V O'BRIEN 1952– 1953 NI 10

BARRY V BUCKLEY 1981 IR 306

WYLIE'S JUDICATURE ACTS 1906 34–37

SUPREME COURT PRACTICE 1979 PARA 18/19/10

GOODSON V GRIERSON 1908 1 KB 761

BANCO AMBROSIANA V ANSBACHER & CO 1987 ILRM 669

CONSTITUTION ART 34(4)(6)

WAITE V HOUSE OF SPRING GARDENS & ARMOURSHIELD UNREP BARRINGTON 26.06.85 1985/6/1592

HALSBURY'S LAWS 4ED V26 PARA 56

HALSBURY'S LAWS 4ED V16 PARA 1553

HALSBURY'S LAWS 4ED V8 PARA 727

WHITE BOOK 1985 1047 PARA 71/9/2

SYAL V HEYWARD & ANOR 1948 49 TLR 476 1948 2AER 676

JONESCO V BEARD 1930 AC 298

HALSBURY'S LAWS 4ED V26 PARA 561

HALSBURY'S LAWS 4ED V16 PARA 1534

BOSWELL V COAKS 1886 11 AC 232

BARRELL ENTERPRISES & ORS IN RE 1972 3 AER 631

LADD V MARSHALL 1954 3 AER 754

FALCKE V SCOTTISH IMPERIAL INSURANCE CO 57 LT 39

ST ALBANS INVESTMENT CO & SUN ALLIANCE & LONDON INSURANCE & PROVINCIALINSURANCE CO LTD UNREP HIGH MURPHY 27.06.90

AMPTHILL PEERAGE CASE 1976 2 AER 411

COKE ON LITTLETON

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 ART 1

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 ART 27

AG V RYANS CAR HIRE LTD 1965 IR 642

REICHEL V MCGRATH 1889 14 AC 665

LAWRENCE V NORREYS 1890 15 AC 210

SEATON V GRANT 1867 2 CH D 459

RSC O.19

BLAIR V CRAWFORD 1906 1 IR 578

WHITE BOOK 1970

ST NAZAIRE, IN RE 1897 12 CH D 88

JUDICATURE ACT 1873

RSC O.31 r12

1 Judgment of Mr. Justice Murphy delivered the 30th day of November 1990.

2 By Notice of Motion dated the 3rd day of July 1989 the above named Defendants have sought an Order of the Court striking out the Plaintiffs" claim herein on the grounds that it discloses no reasonable cause of action or alternatively on the grounds that the said claim is frivolous and vexatious and/or on the grounds of the inherent jurisdiction of the Court to determine an abuse of the process thereof.

3 There is no room for debate as to the approach which this Court should take in dealing with an application of that nature. It is set out clearly in a series of decided cases.

4 In Blair v. Crawford 1906 1 I.R. 578 at 586 Palles C.B. said:-

"...... in acting under that summary jurisdiction to stay proceedings upon the ground that they are an abuse of the process of the Court, and before making a summary order to stay, which deprives a plaintiff of that which is, prima facie, his legal right, i.e., his right of having his action brought to trial, the Court ought to be astute to see that there is no real question capable of being tried".

5 Again this approach has been adopted by the Court in Northern Ireland in Mulgrew v. O'Brien 1952–53 N.I.L.R. 10 in which Black L.J. set out the position (at page 14) in the following terms:-

"The court has an undoubted inherent jurisdiction to strike out a pleading or dismiss an action which it can see is obviously frivolous or vexatious or an abuse of its process: Reichel v. Magrath; Lawrance v. Norreys. This however is a very strong course to take and the jurisdiction is one which will be exercised with the greatest care and circumspection. The theory of our law is that every subject has prima facie a right to have his action brought to trial: Seaton v. Grant and Blair v. Crawford".

6 In Barry v. Buckley 1981 I.R. 306 Mr. Justice Costello advised the same cautious approach in staying proceedings and also adverted to the right to refer to documentation other than the pleadings of the parties in the following terms at page 308 of the judgment:-

"But apart from order 19, the Court has an inherent Jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie's Judicature Acts (1906) at pp. 34–37 and the Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the Court does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff's claim must fail; per Buckley L.J. in Goodson v. Grierson at p. 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff's case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant".

7 The relief sought in the above entitled action is set out in the first three paragraphs of the Plenary Summons herein in the following terms:-

8 2 "1. An Order setting aside the Order of the Supreme Court dated the 8th day of April 1987 in the proceedings entitled "Banco Ambrosiano S.P.A. (in compulsory administrative liquidation) and Lanfranco Gerini, Felice Martinelli and Franco Spreafico Plaintiffs and Ansbacher and Company Limited, Bruno Tassan Din and Arborfield Limited, Defendants, Record Number 171/86.

9 2. An Order impeaching the judgment of the Supreme Court delivered the 8th day of April 1987 in the proceedings referred to in paragraph 1 herein.

10 3. An Order directing a new trial of the issues in the entitled proceedings in paragraph (1) above for in the alternative, an Order directing a new trial".

11 In other words the first named Plaintiff in the present proceedings (to whom I will refer as Tassan Din so as to avoid confusion) and the secondly named Plaintiff Arborfield Limited (which is a company controlled by Tassan Din) are seeking to set aside the judgment and Order made by the Supreme Court on the 8th day of April 1987 in the proceedings in which Banco Ambrosiano S.P.A. (to whom I shall refer as "the Bank") and Lanfranco Gerini, Felice Martinelli and Franco Spreafico (to whom I shall together refer as "the liquidators") were the Plaintiffs and Ansbacher and Company Limited (to whom I shall refer as "Ansbacher"), Tassan Din and Arborfield Limited were Defendants. By their Order and judgment aforesaid the Supreme Court discharged the Order of the President of the High Court made on the 1st day of May 1986 and in lieu thereof declared the Bank and the liquidators entitled to the sum of US$30,971,350 standing to the credit of Arborfield Limited in the Leeson Street Dublin branch of Ansbacher together with net accretions of interest and capital since the date of the deposit thereof. The judgments of the High Court and the Supreme Court are contained in Volume 7 of the Irish Law Reports Monthly at pages 669 and 687 respectively.

12 Throughout the 1970's the Bank in Italy and its numerous subsidiaries and associated companies throughout the world together with another financial institution known as La Centrale Finanziaria Generale S.P.A. (generally referred to as "La Centrale") were controlled or dominated by one Roberto Calvi. Some time about April 1981 Rizzoli Editore S.P.A., a substantial conglomerate in Italy, was recapitalized with the assistance of Roberto Calvi and his banking empire. Tassan Din had previously been appointed general manager of Rizzoli at the instigation of Calvi and it is clear that a close and special relationship existed between those two men. At the time of the recapitalization of Rizzoli a sum of US$80,000,000 was paid out by the Bank and after a complex series of international financial transactions that sum together with an additional US$15,000,000 (making a total of US$95,000,000) was deposited in a bank in Zurich to the credit of Tassan Din, Gelli and Ortolani. It was immediately divided as to US$30,000,000 in favour of Tassan Din and the balance of US$65,000,000 equally between Ortolani and Gelli. It was that US$30,000,000 which came to be lodged with Ansbacher in Leeson Street. The Bank and the liquidators thereof maintained in the original proceedings that there was no consideration or commercial basis to justify the transfers of the sums aforesaid and in particular the transfer of the sum of US$30,000,000 to Tassan Din; that...