Montecchi v Shimco (U.K.) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRIDGE,LORD JUSTICE GEOFFREY LANE,LORD JUSTICE ROSKILL |
| Judgment Date | 04 October 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J1004-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 October 1978 |
[1978] EWCA Civ J1004-2
In the Court of Appeal
Queen's Bench Division
Lord Justice Roskill
Lord Justice Geoffrey Lane and
Lord Justice Bridge
MR. Michael GETTLESON (instructed by Messrs. Derek Holden & Co. of Camberley, Surrey) appeared for Shimco (UK) Ltd. in each case.
MR. M.H.K. HAMER (instructed by Messrs. Pritchard Englefield & Tobin of London) appeared for the Respondent, Ovidio Montecchi.
MR. JOHN SPEED (instructed by Arturo Barone of London) appeared on behalf of the Appellant, Domenica, and the Appellant Navone Domenica.
These are two appeals in two different actions against two orders made in similar situations but in the contrary sense, by two different learned Judges in Chambers. The two actions are brought by two Italian plaintiffs, Mr. Montecchi and a company called Domenica, against the same defendants in each case, an English company, Shimco (U.K.) Ltd. In each case the Italian plaintiff had sold leather goods to the English defendants. In each case payment for the goods sold had been by bill of exchange drawn by the defendant company the relevant documents relating to the goods to be released against acceptance of the bills of exchange. In each case the bills were dishonoured and in due course these actions were brought.
The orders which are the subjects of the appeals were made in each case by the learned Judge in Chambers on appeal from the Master in proceedings by way of summary judgment by the plaintiffs in each case under order 14. The result in the case of Montecchi, which came before Mr. Justice Peter Pain on appeal from Master Elton on 30th June this year, was that the plaintiff succeeded on obtaining judgment for the amounts of the bills which were payable in Italian lire for 6,468,778.61 lire, with the appropriate interest thereon, and Mr. Justice Peter Pain removed a stay of execution from that judgment which had been granted by the learned Master.
In the case of Domenica, the matter came before Mr. Justice Jupp in Chambers on 25th July, on appeal from an order of Master Lubbock who had given judgment under order 14 against the defendants. Mr. Justice Jupp allowed that appeal. He granted a stay of execution on the judgment on the defendants paying the amount of the judgment into a joint account or into court, and he further granted an injunction restraining the plaintiff from dealing in any way with the proceeds of the judgment. The basis on which Mr. Justice Jupp waspersuaded that that was an appropriate course to take, and the basis which failed to persuade Mr. Justice Peter Pain that a similar course was appropriate was this: In each case the defendant company had made a counter-claim against the plaintiff, alleging that the leather goods, the subject of the contract, the basis of the whole transaction, had been defective, and in each case the defendant company claimed damages in respect of those defects.
Now of course it is elementary that as between the immediate parties to a bill of exchange, which is treated in international commerce as the equivalent of cash, the fact that the defendant may have a counter-claim for unliquidated damages arising out of the same transaction forms no sort of defence to an action on a bill of exchange and no ground on which he should be granted a stay of execution of the judgment in the action for the proceeds of the bill of exchange. How, therefore,...
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