A recent High Court decision has confirmed that where a party seeks to bring an application, it should deal with any related aspects in that application the first time round, rather than holding it over for another application. If the party fails to do so, and holds over another related issue, it is likely to be precluded from prevailing on that second application. Although premised on an old rule, it was raised again in Walsh & Rattigan v Newlyn Homes (Portugal) Limited.(1) The court ruled that where the defendant had previously challenged the jurisdiction of the courts, it could not bring subsequent application seeking to refer the matter to arbitration.
The defendant was an Irish registered company which had developed a holiday resort in Portugal, in which the plaintiffs had decided to buy a property, paying a deposit of 7,500. The deposit was refundable until the signing of an investment agreement, which was duly entered into with local legal advice. On signing the agreement, the plaintiffs paid an additional deposit of 22,500 in September 2006. However, in October 2008 the plaintiffs had concerns about the terms of a promissory contract. Although it was altered, the plaintiffs ultimately refused to enter the promissory contract and the defendant retained the deposit. The plaintiffs sought the return of the deposit but the defendant refused to hand it over. A plenary summons was issued in the High Court.
The defendant issued a notice of motion seeking an order from the court declining jurisdiction under Articles 23 and 24 of EU Regulation 44/2001. This application was premised on a jurisdiction clause in the real estate investment agreement, providing that Portugal be the agreed forum. The court refused the defendant's application. It found that since the plaintiffs were 'consumers' within the meaning of the Brussels Regulation, the jurisdiction clause in the agreement could not be enforced against them.
Subsequently, the defendant applied to the court to stay the proceedings on the basis that the dispute was subject to an arbitration clause. However, the application was based on the same clause which had been raised before the president of the High Court in the prior jurisdictional challenge.
The court noted that the defendant argued that it could not have raised the case for a stay based on the arbitration element of the clause at the same time as it argued the jurisdictional part...