212 / 330
g a z e t t e
s e p t e m b e r 1986
Why is
ourmanager's
dooralways
open?
8. In order to obtain interim or interlocutory relief
against a bank it will be sufficient to adduce evidence
from which the only realistic inference is one of fraud.
9. In the case of a letter of credit the fraud exception
does not extend to fraud to which the seller or the
beneficiary is not party. Similarly, it should follow that
the fraud exception may not be relied on to escape
payment on the bond where the beneficiary is not party
to the fraud.
10. There is jurisdiction in an appropriate case to grant
a
mareva
injunction in respect of the proceeds of the
bond in the hands of the beneficiary. But, such an
injunction may not be granted where the bond specifies
a foreign country as a place of payment.
•
Footnotes
26. 128 S.J. 282; 'The Times', February 28, 1984. The judgment of
Keanc J. was delivered 8 days earlier.
27. 'The Times'. July 18, 1984; 'The Financial Times'. July 25,
1984. (Court of Appeal: Aekner, Slade I..JJ. and Sir John
Megaw).
28. See
Siskina
-v- Distos
S.A.
[1979] A . C. 210; [1977] 3 All E.R.
803;
The Chief Constable
of Kent and Ors
- I 1I983| I Q B
34; [1982] 3 All E.R. 36. The decision of the House of Lords in
the
Siskina
case was recently considered by Finlay C.J. in
Serge
Caudron and Others -v- Air Zaire and Aer Lingus and Aer
Rianta,
Supreme Court, unreported, 26 April 1985 (which was a
case concerning order 11, rule I (g) of the Rules of the Superior
Courts relating to service out of the jurisdiction). See also David
Bean,
injunctions
(
3rd ed., 1984) pp. 4-6.
29. The two other causes of action were in agency and contract. In
the
Hihernia
Meats
case, Keane J. also adverted to the possibility
of the plaintiffs recovering sums paid from the Irish bank as
customer and banker (where payment is made pursuant to a
demand which to the knowledge of the hank at the time of
payment is fraudulent).
30. It has been suggested that this statement could only mean that
" a bank must invite, or ask its customer to invite the comments
of the foreign party to the underlying contract and the bank must
then assess the response or lack of response. All this must be
done urgently after demand has been ma d e ." See " T h e C o u r t s ",
Banking Wo r l d, October 1974, p. 49. It is elsewhere submitted,
correctly, in the writer's opinion, that such interpretation is
incorrect. " T h e Court of Appeal's judgment merely identifies
how difficult it will be for the customer/seller to establish the
fraud exception. So much so, that even where the facts of the
case strongly suggest fraud, the court will be reluctant to make a
finding to that effect where the overseas buyer has not been given
an opportunity to answer the allegations made against h i m . "
Graham A. Penn, " P e r f o r ma n ce Bonds: are bankers free from
the underlying contract?" [1984] J.B.I.. 132 at 134 and 135.
31. [1975] A . C. 39:; Approved in
Campus
OH and
Others
-v-
Ministrv
for Industry
and Energy and Others
(No. 2) [1984] I. R.
88: |I9841 M K M 45. See I ( W Wvlie.
Irish I and la w (First
Supplement)
(1975-1980) para. 3.133.
ANSWER:
We could try to be funny
and say it was to let the bank drafts in.
But the truth is it's just the way we
operate. Personal, attentive service at all times.
Total access to the manager. Longer hours than
most banks. And higher interest on deposits.
They may sound like small things. But when
you add up the little things we do and most
banks don't, you'll understand why our
18-21 St Stephen's Green, Dublin 2. Tel. (01) 763502
3 The Crescent, Limerick. Tel. 061-319522
K SECURITY PRIVATE INVESTIGATIONS LIMITED
FOUNDED 1947
Internationally represented in 40 countries
SERVICES INCLUDE INVESTIGATIONS INTO:
* Fraud Internal Theft & Stock Losses
(mcuding Hotel and Licensed Trade
* Trace & Present Whereabouts
* Marital/Domestic/Family Law
* Counter Technical Surveillance Services
* Questioned Documents/Handwriting Analysis
* Copyright/Patent/Trademark, Infringement
' Employment Tribunal/Unfair Dismissal:
Employer/Employee
* Full Forensic Investigation Service & Consultant
Forensic Scientists available for second opinion
Expert Witnesses & Scientific Testing
* Insurance Claims
* Surveillance/Observation & Undercover
Agents
* Commercial, Civil, Criminal: Plaintiff/Defence
' General Investigations under P.I.L.
Fully Experienced Investigators conservant w i th all aspects of Court Attendance, Evidence etc.
OUR SUBSIDIARY: S U MMO NS SERVERS LIMITED for Service of ALL Court Documents throughout Ireland,
(32 Counties) and under Order 11, R.S.C. worldwide. Drafting of Affidavit included in service.
RICHMOND CHAMBERS, 101 RICHMOND ROAD, DRUMCONDRA, DUBLIN 3.
TEL: 3 6 0 1 2 4 ' 3 6 0 1 2 5 / 3 6 0 0 8 7 / 3 7 1 9 06
202