Beades v European Banking Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IEHC 794
• Court: High Court
• Docket Number: [2016 No. 4531P]
• Date: 21 December 2016

[2016] IEHC 794

THE HIGH COURT

COMMERCIAL

Costello J.

[2016 No. 4531P]

BETWEEN

JERRY BEADES

PLAINTIFF

AND

EUROPEAN BANKING AUTHORITY, EUROPEAN SECURITIES AND MARKETS AUTHORITY, EUROPEAN SYSTEMIC RISK BOARD

AND

EUROPEAN CENTRAL BANK, CENTRAL BANK OF AUSTRIA, CENTRAL BANK OF BELGIUM, CENTRAL BANK OF CYPRUS, CENTRAL BANK OF ESTONIA, CENTRAL BANK OF FINLAND, CENTRAL BANK OF FRANCE, CENTRAL BANK OF GERMANY, CENTRAL BANK OF GREECE, CENTRAL BANK OF ITALY, CENTRAL BANK OF LATVIA, CENTRAL BANK OF LITHUANIA, CENTRAL BANK OF LUXEMBOURG, CENTRAL BANK OF MALTA, CENTRAL BANK OF THE NETHERLANDS, CENTRAL BANK OF PORTUGAL, CENTRAL BANK OF SLOVAKIA, CENTRAL BANK OF SLOVENIA, CENTRAL BANK OF SPAIN,

AND

CENTRAL BANK OF IRELAND

DEFENDANTS

Administrative & Constitutional law – Practice & Procedures – O.19, r. 28 of the Rules of the Superior Courts 1986 – Striking out the proceedings – O. 11A, r.8 of the Rules of the Superior Courts 1986 – Setting aside of service – Lack of cause of action – Immunity of Sovereign – Art. 263 of the Treaty on the Functioning of the European Union ("TFEU") – Brussels Regulation

Facts: The first to fourth defendants ("European Bodies") sought an order for setting aside of service of summons on them in relation to the proceedings filed by the plaintiff. The twenty-third defendant ("Central Bank of Ireland") also sought an order for striking out the proceedings against it. The plaintiff had instituted the present proceedings against the defendants seeking various mandatory and declaratory reliefs for compelling the defendants to fulfil their mandates as provided by their constitutional instruments.

Ms. Justice Costello granted an order for setting aside of service of summons against the European Bodies. The Court held that the Court of Justice of European Union ("CJEU") was vested with exclusive jurisdiction to try any proceedings against the European Bodies. The Court observed that the plaintiff did not raise any grievance by way of written communication to any of those Bodies, and thus, the plaintiff had failed to satisfy the conditions under which the claim against those Bodies could be brought under art. 265 of the TFEU. The Court further found that since the present proceedings were of administrative nature, the provisions of Brussels Regulation were inapplicable. The Court also granted an order under o.19, r. 28 of the Rules of the Superior Courts for the dismissal of the plaintiff's claim against the Central Bank of Ireland. The Court found that the issue of liability of the Bank acting within EU Banking Framework was a matter that the present Court could not decide. The Court held that it had no jurisdiction to decide that issue. The Court found that the plaintiff's claim against the Bank was too wide to be entertained, and thus, it was bound to fail.

JUDGMENT of Ms. Justice Costello delivered on the 21st day of December 2016

Introduction

1 Six motions were brought for hearing before this Court; the application of the first to fourth defendants in these proceedings (the 'Institutional Proceedings') seeking an order setting aside the service of the proceedings on them ('the set aside applications'); the application of the twenty-third defendant in the Institutional Proceedings seeking, in essence, an order striking out the proceedings against it ('the Central Bank of Ireland's strike out application'); and the application of the twenty-second defendant in related proceedings entitled Beades v Elderfield & Ors [2016] 4530P (the 'Individual Proceedings') seeking, in essence, an order striking out the proceedings against him ('Governor Lane's strike out application') (together, being 'the strike out applications'). This judgment is concerned with the set aside applications of the first four named defendants and the Central Bank of Ireland's strike out application.

2 The first motion is brought by the first four named defendants respectively, three European bodies and one European institution, for ease of reference 'the European Bodies' seeking an order pursuant to O.11A, r.8 and/or O. 12, r.26 of the Rules of the Superior Courts 1986, and/or the inherent jurisdiction of this court and/or pursuant to Articles 263 and 265 of the Treaty on the Functioning of the European Union ('TFEU') and/or Article 61(2) and (3) of Regulation (EU) no. 1093/2010 setting aside the service of the plenary summons on each of the first four named defendants.

3 The second motion is brought by the twenty-third named defendant, the Central Bank of Ireland, for an order dismissing and/or striking out the plaintiff's proceedings and/or reliefs sought against the Central Bank of Ireland pursuant to O. 19 r.27 and/or r.28 and/or pursuant to the inherent jurisdiction of this court. In the alternative, an order is sought striking out the proceedings on the basis that the plaintiff has no locus standi to maintain these proceedings and further on the grounds that the proceedings are in essence, public law proceedings involving administrative proceedings involving administrative decisions which, having regard to the nature of the claim, can only be brought by way of judicial review proceedings in respect of which prior leave must be obtained.

Background

4 The plaintiff commenced these proceedings by way of a plenary summons on 20th May, 2016. He purported to serve the plenary summons on the 1st – 22nd named defendants pursuant to the provisions of O.11A of the Rules of the Superior Courts 1986. Order 11A permits service out of the jurisdiction in relation to proceedings governed by Article 1 of Regulation E.U./1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter, O.J. L 251/1 20.12.2012, or by Article 1 of the Lugano Convention (Civil and Commercial Matters). Order 11A r.2 provides that service of an originating summons or notice of an originating summons out of the jurisdiction is permissible without leave of the court if firstly, the claim made is one which by virtue of Regulation E.U./1215/2012 or the Lugano Convention ('the Brussels Regulation') and the Jurisdiction of Courts and Enforcement of Judgments Act 1998, the court has power to determine and hear, and secondly, no proceedings between the parties concerning the same cause of action are pending in another Member State/ Contracting State of the Lugano Convention. The plenary summons was endorsed to state that the proceedings were brought under the Brussels Regulation, but no particular provision of the Regulation under which the High Court should assume jurisdiction was identified. The plenary summons was accompanied by a letter dated 24th May, 2016, addressed to the Minister for Finance ('the letter to the Minister').

5 The Institutional proceedings were served on the Central Bank of Ireland on 25th May, 2016, and on the European Bodies respectively, on 30th May, 2016. The plaintiff also sent letters containing a copy of these proceedings to a number of other National Central Banks namely, the Central Bank of Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Italy, Latvia, Lithuania, Malta, Netherlands, Portugal, Slovenia, Slovakia and Spain ('The National Central Banks').

6 The plaintiff issued a second, related set of proceedings mirroring the Institutional Proceedings to the individuals who occupy the positions of Governor, President, Chair or equivalent in certain of the defendant institutions in the Institutional Proceedings, including the former Deputy Governor of the Central Bank of Ireland. These are referred to as the 'Individual Proceedings'.

7 By orders of 4th July, 2016, both sets of proceedings were entered into the Commercial List. The European Bodies were given leave to issue set aside applications and the Central Bank of Ireland to file a strike out application.

8 The remaining defendants in both sets of proceedings, the National Central Banks and the defendants in the Individual Proceedings, have not entered appearances before the court on the basis that they consider that to do so would infringe their sovereign immunity and/or immunities arising under Articles 10 and/or 11 of Protocol (No.7) on the privileges and immunities of the European Union O.J. C 326/1. 26.10.2012.. The defendants (except Mr Matthew Elderfield and Jacques de Larosiéré) have set out their positions in correspondence to the Central Bank of Ireland and to Governor Lane. The plaintiff has not served Mr. Elderfield or Mr. de Larosiéré with a copy of the plenary summons in the Individual Proceedings.

The Plaintiff's Claim in these proceedings

9 In the general endorsement of claim of the plenary summons the plaintiff seeks the following reliefs:-

'1. A Mandatory Injunction compelling the Defendants and each of them individually and collectively to adhere to their mandates as provided by their constituting instruments.

2. A Declaratory Order ordering the Defendants and each of them individually and collectively to adhere to their mandates as provided by their constituting instruments.

3. A Mandatory Injunction compelling the Defendants and each of them individually and or collectively to investigate all Banks and other financial Institutions their servants and agents within their remit involved in the Oil Industry directly, indirectly or otherwise their subsidiaries and their servants and agents.

4. A Declaratory Order ordering the Defendants and each of them individually and or collectively to investigate all Banks and other financial Institutions their servants and agents within their remit involved in the Oil Industry directly, indirectly or otherwise their subsidiaries and their servants and agents.

5. A Mandatory Injunction compelling the Defendants and each of them individually and or collectively to sanction all Banks and other financial...