Abama and Others v Gama Construction Ireland Ltd and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 25 February 2011
• Neutral Citation: [2011] IEHC 308
• Court: High Court
• Date: 25 February 2011

Abama & Ors v Gama Construction Ireland Ltd & Ors

No redaction necessary

BETWEEN

MEVLUT ABAMA AND OTHERS

PLAINTIFFS

AND

GAMA CONSTRUCTION IRELAND LIMITED AND GAMA ENDUSTRI TESISLERI IMALAT VE MONTAJ A.S.

DEFENDANTS

[2011] IEHC 308

[No. 6463 P./2008]

THE HIGH COURT

PRACTICE & PROCEDURE

Jurisdiction

Appropriate forum - Doctrine of forum non conveniens - Principles to be applied - Test - Burden of proof - Factors to be considered - Applicability of Council Regulation (EC) 44/2001 - Compatibility of forum non conveniens doctrine with Regulation - Effect of exclusive jurisdiction clause in contract - Plaintiffs obtained liberty to serve notice of plenary summons outside jurisdiction pursuant to Rules of Superior Courts, O 11 - No endorsement regarding Regulation in plenary summons - Defendants applied for stay on basis Turkey appropriate forum to litigate claims - Whether Regulation applied - Whether Turkey appropriate forum - Application refused - Gama Construction (Ireland) Ltd v Minister for Enterprise [2009] IESC 37, [2010] 2 IR 85; Owusu v Jackson (ECJ) (Case C-281/02) [2005] I-01383, [2005] QB 801; Intermetal Group Ltd v Worslade Trading Ltd [1998] 2 IR 1 applied - Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460; In re Harrods (Buenos Aires) Ltd [1992] Ch 72; McCarthy v Pillay [1995] 1 ILRM 310; Donohue v Armco [2002] 1 All ER 749 approved - Microsoft Ireland Operations Ltd v EIM International Electronics Ltd [2010] IEHC 228 (Unrep, de Valera J, 9/6/2010); Goshawk Dedicated Limited v Life Receivable Ireland Limited [2008] IEHC 90, (Unrep, Clarke J, 27/2/2008) and [2009] IESC 7, (Unrep, SC, 30/1/2009); Schmidt v Home Secretary of the Government of United Kingdom [1997] 2 IR 121 considered - Spielberg v Rowley [2004] IEHC 384, (Unrep, Finlay Geoghegan J, 26/11/2004) distinguished - The Rules of the Superior Courts 1986 (SI 15/1986) Os 4 r 1A, 11, 11A, r 4, 11B - Council Regulation (EC) 44/2001, arts 21 and 22 - Brussels Convention 1968, art 5 - Lugano Convention 1998 - Application refused (2008/6463P - Dunne J - 25/2/2011) [2011] IEHC 308

Mevlut Abama v Gama Construction Ireland Ltd

Facts The 491 plaintiffs in these proceedings obtained liberty to serve notice of a plenary summons against the second named defendant herein outside the jurisdiction pursuant to Order 11, rule 1(e) of the Rules of the Superior Courts. The defendants entered conditional appearances for the sole purpose of contesting the jurisdiction of the Irish Courts in relation to these proceedings. The plaintiffs were originally employed by the second named defendant, which had its primary location in Turkey. However, on foot of a consultancy agreement, dated 1 November 2001 the second named defendant seconded the plaintiffs to Ireland to work for the first named defendant. Subsequently a dispute arose between the parties with regard to rates of pay and this ultimately resulted in the brining of these proceedings by the plaintiffs. The defendants herein sought an order pursuant to the inherent jurisdiction of the court staying these proceedings on the ground of forum non conveniens on the basis that the appropriate forum within which the plaintiffs' claim should be litigated was that of Turkey. The defendants relied on a number of factors and circumstances to support the contention that Turkey was the more suitable jurisdiction including, but not limited to the fact that there was an exclusive jurisdiction clause in favour of the Turkish courts contained in the contract between the plaintiffs and the defendants. It was submitted on behalf of the defendants that the application for leave to serve the defendants outside the jurisdiction was a common law application and therefore had to be determined in accordance with the common law doctrine of forum non conveniens. The defendants based that contention on the fact that the plaintiffs obtained liberty to issue and serve out of the jurisdiction pursuant to O. 11 of the RSC. It was submitted that had the application been made pursuant to O. 11A or 11B RSC, the plaintiffs would have been relying on regulations or conventions such as Council Regulation EC 44/2001 and consequently the plenary summons would have contained the necessary endorsement indicating that the plaintiffs were invoking an international convention. The plaintiffs accepted that the plenary summons did not contain the necessary endorsement but submitted that the court had jurisdiction to hear the case under and by virtue of the 2001 Regulation. The Plaintiffs also submitted that they were not required to serve the defendants under O.11A as rule 4 of that Order provided that O.11 was the appropriate provision under which to apply for leave to serve out of the jurisdiction where one of the co-defendants was not domiciled in the Member State. The plaintiffs further submitted that the jurisdiction clause was unenforceable under and by virtue of the Regulation and finally that Ireland was, for a number of reasons, the most appropriate forum.

Held by Dunne J. in refusing the defendants' application: That the appropriate test to be applied when considering the issue of forum non conveniens was 'the broader principle of justice for both parties'. Furthermore, the defendant was required to establish Turkey as a more appropriate forum for the resolution of the issues between the parties herein and if successful, the onus then fell to the plaintiffs to demonstrate that justice required that the stay should be refused and the Irish Courts should deal with the matter. The defendants and the plaintiffs both put forward factors in support of their contentions that Turkey and Ireland respectively were the most appropriate forums. However, it was not appropriate to consider whether a forum would provide a more advantageous or disadvantageous remedy to one or other of the parties. It was accepted by the parties herein that the court was obliged to give effect to the exclusive jurisdiction clause contained in the contract between the parties unless there were good reasons not to. The effect of the decision in Owusu v Jackson (trading as Villa Holidays Bal-Inn Villas) and Others [2005] E.C.R.I. 383, relied on by the plaintiffs was that national courts were deprived of the common law jurisdiction to stay proceedings on the grounds of forum non conveniens. Furthermore, the effect of that decision deprived the national courts of the jurisdiction to stay proceedings where there was a choice of jurisdiction clause, subject to the provisions of the 2001 Regulation. The plaintiffs erred in failing to have the required endorsement on the plenary summons. However, the jurisdiction provided under the Regulation could not be ousted by such a failure to invoke the jurisdiction in accordance with the procedures laid down by the national law. Furthermore, the provisions of O.11A could not have applied to this case as the second named defendant was not domiciled in a Member State for the purposes of the Regulation and in accordance with the provisions of O.11A, rule 4(1) service on such a defendant was governed by the provisions of O.11. In those circumstances, the plaintiffs were entitled to rely on the provisions of the Regulation as forming the basis of jurisdiction in these proceedings. Consequently, the discretionary application made by the defendants for a stay in these proceedings was precluded by virtue of the application of the Regulation having regard to the decision in Owusu. In the event that the court is wrong in concluding that the Regulation is applicable, the plaintiffs demonstrated that this action had the most real and substantial connection with this jurisdiction and furthermore the balance of justice was such that the proceedings should be dealt with in this jurisdiction .

Reporter: L.O'S.

EEC REG 44/2001

GAMA ENDUSTRI TESISLERI IMALAT MONTAJ A.S. v MIN FOR ENTERPRISE & NOLAN UNREP SUPREME 30.4.2009 2009/22/5473 2009 IESC 37

RSC O.11 r1(e)

RSC O.11

RSC O.11(A)

RSC O.11(B)

SPIELBERG v ROWLEY UNREP FINLAY GEOGHEGAN 26.11.2004 2004/47/10870 2004 IEHC 384

DONOHUE v ARMCO 2002 1 AER 749

MICROSOFT IRELAND OPERATIONS LTD v EIM INTERNATIONAL ELECTRONICS LTD & EIM COMPUTERISED TECHNOLOGIES LTD UNREP DE VALERA 9.6.2010 2010/34/8508 2010 IEHC 228

BRUSSELS CONVENTION (EUROPEAN CONVENTION ON JURISDICTION & ENFORCEMENT OF JUDGMENTS IN CIVIL & COMMERCIAL MATTERS) 1968

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1998

RSC O.11(A) r4

RSC O.4 r1(A)

EEC REG 44/2001 ART 21

OWUSU v JACKSON (T/A VILLA HOLIDAYS BAL INN VILLAS) & ORS 2005 QB 801 2005 2 WLR 942 2005 2 AER (COMM) 577 2005 ECR I-1383

GOSHAWK DEDICATED LTD & ORS v LIFE RECEIVABLES IRELAND LTD UNREP CLARKE 27.2.2008 2008/27/5864 2008 IEHC 90

SPILIADA MARATIME CORPORATION v CONSULEX LTD 1987 1 AC 460

INTERMETAL GROUP LTD v WORSLADE TRADING LTD 1998 2 IR 1

HARRODS (BUENOS AIRES) LTD, RE 1992 CH 72

MCCARTHY v PILLAY 2003 1 IR 592

CHESHIRE, NORTH & FAWCETT PRIVATE INTERNATIONAL LAW 14ED 2008 P431

CHESHIRE, NORTH & FAWCETT PRIVATE INTERNATIONAL LAW 14ED 2008 P300

RSC O.11 r1(c)

RSC O.11 r1(h)

SCHMIDT v THE HOME SECRETARY 1995 1 ILRM 310

1 JUDGMENT of Ms. Justice Dunne delivered the 25th day of February 2011

2 The plaintiffs in these proceedings, who total some 491 individuals, by order dated the 28 ^th July, 2008 (Peart J.) obtained liberty to serve notice of a plenary summons against the second named defendant (Gama Turkey). Conditional appearances were entered by the first named defendant (Gama Ireland) and by Gama Turkey on the 10 ^th September, 2008, and on the 10 ^th December, 2008, respectively. The appearances were entered for the sole purpose of contesting the jurisdiction of the Irish courts in relation to these proceedings.

Background

3 The 491 plaintiffs in these proceedings were originally employed by Gama...