Owens Bank V. Bracco Hl Notes

Owens Bank v. Bracco

Facts

Bank’s claim was that, on 31 January 1979, Mr. Armando Nano, the then managing director of the bank and acting on its behalf, had lent to Bracco Industria Chimica S.p.A. the sum of Swiss Fr. 9m., which had then been handed over in cash by Nano to Bracco, who was the president of Bracco Industria Chimica S.p.A. acting on its behalf, or his own behalf. The loan was made, it was said, on terms agreed orally including, inter alia, that it should be repayable in three tranches of Sw.Fr. 2m., 3m., and 4m. on 27, 28 and 29 August 1979. The documents included provisions that gave the High Court of St. Vincent and the Grenadines jurisdiction in the event of dispute.

Allegation of Fraud by Bracco: After the bank's case was closed, however, the defence intimated that they wished to set up a new defence, namely, that the signatures on the receipts and acknowledgements were genuine signatures but that they had originally appeared in the wide margins of a contract concerning a wholly different matter, that the margins with the signatures had been cut off and that Nano or someone on his behalf or on behalf of the bank had then typed in the rest of what appeared on the document.

Proceedings in Italy: Between the judgment in the High Court of St. Vincent and the dismissal of the appeal therefrom yet further proceedings had been commenced in Italy including (1) civil proceedings at the suit of both defendants seeking declarations of non-liability to the bank and (2) proceedings by the bank to enforce the St. Vincent judgment.

Bank seeks to enforce the St. Vincent Judgment in England.

Section 9 of the 1920 Act provides:

If in all the circumstances of the case they think it is just and convenient that the judgment should be enforced in the United Kingdom, and subject to the provisions of this section, order the judgment to be registered accordingly.

(2) No judgment shall be ordered to be registered under this section if - (a) the original court acted without jurisdiction; or (b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or (c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or (d) the judgment was obtained by fraud.

Bank’s argument: But it is submitted for the bank that the language of section 9(2)(d) must be construed as qualified by the common law rule that the unsuccessful party who has been sued to judgment is not...

Buy the full version of these notes or essay plans and more in our Conflict of Laws BCL Notes.