Albaniabeg Ambient Sh.p.k. v Enel S.p.A.

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 08 March 2016
• Neutral Citation: [2016] IEHC 139
• Docket Number: [2014/1960 S: 2014/128 COM]
• Court: High Court
• Date: 08 March 2016

[2016] IEHC 139

THE HIGH COURT

COMMERICAL

McDermott J.

[2014/1960 S: 2014/128 COM]

BETWEEN

ALBANIABEG AMBIENT Sh.p.k.

PLAINTIFF

AND

ENEL S.p.A.

AND

ENELPOWER S.p.A.

DEFENDANTS

Contract – Breach of contract – Practice & Procedures – O. 12, r. 26 of the Rules of the Superior Courts – Lack of jurisdiction – Cost and convenience

Facts: The defendants sought an order for setting aside an ex-parte order of the High Court granting liberty to the plaintiff to serve the present proceedings outside the jurisdiction of the Court and also an order for the dismissal of the said proceedings on the basis of lack of jurisdiction. The plaintiff being a company incorporated under the laws of Albania, sought to enforce the judgment of the District Court of Albania for damages arising out of a claim for tort and unfair competition against the defendants, in the jurisdiction of Ireland.

Mr. Justice McDermott granted the desired reliefs to the defendants. The Court held that before granting an order under o. 12, r. 26 of the Rules of the Superior Courts, the Court must determine whether the plaintiff had a good arguable case and that the underlying case was fit and suitable for being proceeded in the jurisdiction of Ireland. The Court observed that it must consider certain factors such as costs, convenience, availability of the witness and assets, governing law and the place of residence of the defendants to judge the fitness and suitability of a case. The Court found that notwithstanding the fact that the plaintiff had a good arguable case; namely, enforcement of a foreign judgment, the present proceedings would serve no purpose as the defendants had no asset in the present jurisdiction in order to realise the claimed amount of money. The Court held that though the existence of assets of the defendants was not a precondition, yet there should be reasonable prospects of the success of the plaintiff. The Court found that since the plaintiff was an Albanian and the defendants were an Italian company, both having pursued the matter in other jurisdictions and given the complicated nature of proceedings involving various experts and witnesses, it would not be appropriate to bring the proceedings in the jurisdiction of Ireland.

JUDGMENT of Mr. Justice McDermott delivered on the 8th day of March, 2016

1 The defendants seek an order pursuant to Order 12 Rule 26 of the Rules of the Superior Courts setting aside the order of the High Court (Hedigan J.) of 21st July, 2014 granting the plaintiff liberty to serve proceedings outside the jurisdiction and an order dismissing the proceedings on the grounds that the Court does not have jurisdiction or ought not to assume jurisdiction to hear and determine them.

Background

2 The plaintiff seeks to enforce the judgment of the Tirana District Court of Albania delivered on 24th March, 2009 against the defendants in the amount of €433,091,870.00 and costs. The plaintiff is a company incorporated under the laws of Albania and engaged in the sale and supply of energy and related services. Both defendants are companies incorporated under Italian law and are also engaged in the sale and supply of energy and related services.

3 In or about 1996 the plaintiff's parent company (at the time BEG S.p.A.) sought and obtained a concession for the construction and operation of a hydroelectric power plant in the Kalivac region of Albania. During the period in which BEG was endeavouring to obtain this concession the defendants allegedly expressed their interest in purchasing electricity generated by the power plant and the right to supply it to consumers in Italy. On 2nd February, 2000 a final cooperation agreement was concluded between BEG and the defendants. This agreement provided, inter alia, that the parties would establish a special purpose vehicle, the plaintiff company, for the purpose of implementing the terms of the concession. Subsequent to the entry into force of this agreement, the defendants, it is alleged, undermined the completion of the power plant by various acts and omissions which were intended to delay and disrupt its construction.

4 It is claimed that the first defendant also entered into direct competition with the plaintiff in Albania in breach of an exclusivity agreement between the plaintiff and defendants. It is said that as a result the project was not completed in 2003 as originally envisaged. Consequently, proceedings were initiated before the Tirana District Court in which damages were claimed for, inter alia, tort and unfair competition.

5 It is claimed that the Tirana District Court was a Court of competent jurisdiction to determine the plaintiff's claim and that the defendants submitted to its jurisdiction. The Court heard and considered the respective arguments of the parties. On 24th March, 2009, the Tirana District Court delivered what is said to be a final and conclusive judgment. It ordered that the defendants pay to the plaintiff (i) the sum of €25,188,500.00 in damages for tort and unfair competition for the period prior to 2005 and (ii) a sum to be calculated on a formula devised by a Court-appointed panel of experts which would form part of the final judgment of the Court for damages for tort and unfair competition for the years 2005 to 2011. On the application of this formula the sum calculated for damages for those years amounted to €407,903,370.00. Thus the total damages awarded by the Tirana District Court amounted to €433,091,870.00.

6 The defendants appealed against this judgment to the Tirana Court of Appeals. On the 28th April, 2010, the Tirana Court of Appeals affirmed the judgment of the Tirana District Court in its entirety.

7 The defendants appealed against this judgment to the Supreme Court of Albania. On the 7th March, 2011 the Supreme Court affirmed the judgment. The defendants subsequently applied to the Supreme Court requesting it to reconsider its judgment. This application was refused on the 17th June, 2011.

8 It is claimed that despite the repeated demands for payment of the sum awarded, it has not been discharged by the defendants. The plaintiff brings these proceedings seeking to enforce the Albanian judgment in Ireland.

9 On the 21st July, 2014 following an ex parte application, an order was made granting leave to the plaintiff to issue and serve the proceedings on the then intended defendants. Notice of the issue of proceedings was served by registered post in accordance with the order. By letter dated 19th September, 2014 the solicitors on behalf of both defendants entered a Conditional Appearance stating that it was entered for and on behalf of the defendants solely in order to contest the jurisdiction of the Irish Courts and to facilitate the bringing of an application by way of notice of motion to set aside the service upon it of these proceedings. Without prejudice to that appearance, the defendants reserved the right to defend the proceedings in full. Following an application by the plaintiff, the Commercial Court (McGovern J.) admitted these proceedings to the Commercial List on 13th October, 2014. The motion now under consideration issued on 10th November, 2014.

Italian Proceedings

10 In November, 2000 BEG commenced arbitration proceedings against the second defendant before a Tribunal of the Chamber of Commerce in Rome claiming contractual damages for a purported breach of the 2000 cooperation agreement. The Tribunal ruled in favour of the second defendant in December 2002 and found that the Cooperation Agreement had not been breached. Appeals were brought to the Rome Court of Appeals in 2009 and the Italian Supreme Court in 2010 by BEG which were rejected and the ruling of the Tribunal was upheld.

11 During the course of the Italian proceedings BEG, through the plaintiff, (a then wholly owned Albanian subsidiary) initiated the proceedings in Albania in relation to the same issues which culminated in the judgment previously described.

12 The defendants applied to the European Court of Human Rights in September, 2011 claiming that the judgment in the Albanian Courts had been obtained by the plaintiff in breach of the defendants' rights under the Convention. This application was rejected on 22nd May, 2014 on the basis that not all domestic remedies had been exhausted.

13 The plaintiff has attempted to seek enforcement of the Albanian judgment in a number of other jurisdictions namely New York, the Netherlands, France and Luxembourg. No application has been made seeking the enforcement of the judgment in Italy.

Order 11 of the Rules of the Superior Courts

14 Order 11 Rule 1 provides, inter alia, as follows:

‘…service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court whenever - …

(q) the proceeding is brought to enforce any foreign judgment’.

15 Order 11 Rule 2 provides:

‘Where leave is asked from the Court to serve a summons or notice thereof under rule 1, the Court to whom such application shall be made shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience of proceedings in Ireland, or in the place of the defendant's residence, and particularly in cases of small demands where the defendant is resident in England, Scotland, or Northern Ireland, to the powers and jurisdiction, under the statutes establishing or regulating them, or of the Courts of limited or local jurisdiction in England, Scotland or Northern Ireland respectively’.

16 Order 11 Rule 5 provides:

‘Every application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found,...