Abama and Others v Gama Construction (Ireland) Ltd & Gama Endustri Tesisleri Imalat Ve Montaj as

• Jurisdiction: Ireland
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IECA 179
• Date: 31 July 2015
• Court: Court of Appeal (Ireland)

Abama & Ors v Gama Construction (Ireland) Limited & Gama Endustri Tesisleri Imalat Ve Montaj AS

[Article 64 Transfer]

BETWEEN:

Mevlut Abama And Others

Plaintiffs/Respondents

- And -

Gama Construction (Ireland) Limited And Gama Endustri Tesisleri Imalat Ve Montaj A.S.

Defendants/Appellants

[2015] IECA 179

Peart J.

Irvine J.

Mahon J.

Record Number: No. 35/2014

THE COURT OF APPEAL

Contracts of employment – Procedural error – Service out of jurisdiction – Plaintiffs seeking damages for breach of contract – Whether the Court below was correct in concluding that the Irish Courts enjoyed jurisdiction to hear and determine the plaintiffs” claims under Council Regulation 44/2001

Facts: The plaintiffs are Turkish nationals employed by the second defendant, Gama Endustri Tesisleri Imalat Ve Montaj AS (Gama Turkey) under an individual contract of employment made with that company. Gama Turkey is a company registered in the Republic of Turkey. In October 2001, Gama Turkey entered into a Secondment Agreement with the first defendant, Gama Construction (Ireland) Ltd (Gama Ireland) which is its Irish registered subsidiary. All the plaintiffs claimed that while working in Ireland they were not paid in accordance with the Irish Registered Employment Agreement referred to in the Secondment Agreement. Each claimed, inter alia, firstly, a declaration that at all material times their contract of employment with the defendants was governed by the Registered Employment Agreement; secondly, an order directing payment to them of all outstanding wages, pension contributions and expenses pursuant to the Registered Employment Agreement; and thirdly, damages for breach of contract and/or breach of terms of office and/or breach of statutory duty. The plaintiffs conceded that they may have put a foot wrong procedurally when they sought an order for service out of the jurisdiction in respect of the second defendant by relying upon O. 11, r. (1)(e) RSC prior to the commencement of the proceedings. The second defendant submitted that no mere procedural error occurred, and that a conscious decision was made by the plaintiffs to move an application for leave to issue and serve the proceedings outside the jurisdiction under Order 11, r. (1) RSC, and that the order made should be set aside on the basis of common law principles regarding forum non conveniens as sought in their January 2009 Notices of Motion. The second defendant submitted that the plaintiffs should not be allowed to meet its application to set aside the order made under O. 11(1)(e) RSC by claiming that the Irish Courts have jurisdiction to determine their claims by virtue of Council Regulation 44/2001 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Regulation). The plaintiffs submitted that form should not be permitted to triumph over substance, and that the claims should now be permitted to proceed on the basis of the jurisdiction provided under Article 18 of Regulation 44/2001 EC for claims of this nature, since that jurisdiction always existed, and even though in error they sought an order under Order 11 (1) RSC, and even though the Indorsement of Claim did not contain the endorsement required by Order 4, r. 1A RSC. Dunne J decided that the claim came within the Regulation and that, in accordance with the judgment in Owusu v Jackson (trading as Villa Holidays Bal-Inn Villas and others (Case C281/02 [2005] E.C.R–1 383) common law principles of forum non conveniens must yield to the jurisdiction founded upon the Regulation. The second defendant submitted on appeal to the Court of Appeal that in so concluding, Dunne J erred as pleaded in its Notice of Appeal.

Held by the Court that the appeal could be determined by a consideration of whether the judge in the Court below was correct in concluding that the Irish Courts enjoyed jurisdiction to hear and determine the plaintiffs” claims under the Regulation, and that by virtue of the Owusu decision this trumped the exclusive jurisdiction clause and the principles of forum non conveniens. The Court was satisfied that the reasons stated by Dunne J for her conclusion that the plaintiffs were entitled to rely on the provisions of the Regulation as forming the basis of jurisdiction, and therefore that 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 were correct. The Court was satisfied that the order made under O. 11 was correctly made.

The Court held that in circumstances where the plaintiffs moved correctly under O.11 RSC but had omitted an endorsement required by O. 4 RSC, this rule was ample enough to enable the Court to permit the summons to be amended in that regard should it wish to exercise its discretion in that regard. The Court therefore dismissed the appeals.

Appeal dismissed.

1 1. The plaintiffs concede that they may have put a foot wrong procedurally when they sought an order for service out of the jurisdiction in respect of the second named defendant by relying upon O. 11, r. (1)(e) RSC prior to the commencement of these proceedings. This error, if it be such, has led to no end of difficulty, and a delay of some five years in the prosecution of their claims.

2 2. The second named defendant submits that no mere procedural error occurred, and that a conscious decision was made by the plaintiffs to move an application for leave to issue and serve these proceedings outside the jurisdiction under Order 11, r. (1) RSC, and that the order made should be set aside on the basis of common law principles regarding 'forum non conveniens' as sought in their Notices of Motion each dated 15 ^th January 2009.

3 3. The second named defendant submits that the plaintiffs should not be allowed to meet its application to set aside the order made under O. 11(1)(e) RSC by now claiming that the Irish Courts have jurisdiction to determine their claims by virtue of Council Regulation 44/2001 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as 'the Regulation'). By Order of White J. made on the 14 ^th October 2014 they have been permitted to amend their Indorsement of Claim so that it contains a statement therein that (1) the claim made by the summons or other originating document is one which, by virtue of the Regulation, the Court has power to hear and determine, and (2) no proceedings between the parties concerning the same cause of action are pending between the parties in another Member State of the European Union, these being matters referred to in Order 11A, r. 2 RSC, as being pre-requisites for service out of the jurisdiction without leave of the Court under the Regulation, and which under Order 4, r. 1A RSC are required to be endorsed on the originating summons before it is issued.

4 4. The plaintiffs submit that form should not be permitted to triumph over substance, and that the claims should now be permitted to proceed on the basis of the jurisdiction provided under Article 18 of Regulation 44/2001 EC for claims of this nature, since that jurisdiction always existed, and even though in error they sought an order under Order 11(1) RSC, and even though the Indorsement of Claim did not contain the endorsement required by Order 4, r. 1A RSC.

5 5. In the Court below, Dunne J. decided that the claim came within the Regulation and that, in accordance with the judgment in Owusu v. Jackson (trading as Villa Holidays Bal-Inn Villas and others (Case C281/02 [2005] E.C.R-1 383)common law principles of forum non conveniens must yield to the jurisdiction founded upon the Regulation. She went on to conclude that even if she was wrong in holding that claims came within, and jurisdiction existed for the Irish Courts to determine the claims, the application to set aside the order made should be refused in any event under forumnon conveniens principles for reasons which she set forth in her judgment. The second named defendant submits on this appeal that in so concluding both issues, Dunne J. erred as pleaded in its Notice of Appeal.

A little background

6 6. Each of the plaintiffs is a Turkish national employed by the second named defendant (I shall refer to it as 'Gama Turkey' for convenience) under an individual contract of employment made with that company. Gama Turkey is a company registered in the Republic of Turkey.

7 7. The sample of this individual contract of employment which has been exhibited contains 'Article 9 - Disputes' which states that "any dispute that may arise during the performance of this Agreement shall exclusively be settled by Ankara courts and enforcement offices". It also contains 'Article 2 - Place of Performance of the Works' which states:

"The Employee hereby irrevocably agrees to work at the workplace at Ayas Yolu, Seker Fabrikasi karsisi, No. 114 Etimesgut, Ankara or in any place owned by the Employer and located [in] the same or any other city or district or abroad on condition, which he may be assigned to, notwithstanding whether or not there is a member or a representative of a trade union provided that he receives an allowance and acknowledges that the Employer may assign him to such other workplaces." [emphasis added]

8 8. It obviously makes complete sense that if the employee is working in Turkey under this contract any dispute arising in relation to its terms and conditions would be subject to the laws of Ankara. Gama Turkey however also relies on this jurisdiction clause in Article 2 in relation to any disputes arising during the time that they were working abroad in Ireland. They submit that the clause shows a clear intention on the part of the plaintiffs that any claims arising from their...