Bio-Medical Research Ltd v Delatex S.A.

JurisdictionIreland
JudgeMr. Justice McCracken
Judgment Date06 May 1999
Neutral Citation[1999] IEHC 152
Docket NumberNo 4338p/1998
CourtHigh Court
Date06 May 1999

[1999] IEHC 152

THE HIGH COURT

No 4338p/1998
BIO-MEDICAL RESEARCH LTD T/A SLENDERTONE v. DELATEX S.A.

BETWEEN

BIO-MEDICAL RESEARCH LIMITED T/ASLENDERTONE
PLAINTIFF

AND

DELATEX S.A.
DEFENDANT

Citations:

BRUSSELS CONVENTION ART 5.1

BRUSSELS CONVENTION ART 17

ETABLISSEMENTS A DE BLOOSS PRL V ETABLISSEMENTS BOUYER SA 1977 1 CLR 60

BRUSSELS CONVENTION ART 5

HANDBRIDGE LTD V BRITISH AEROSPACE COMMUNICATIONS LTD 1993 3 IR 345

Synopsis

Conflict of laws

Brussels Convention; jurisdiction; exclusive distribution contract; plaintiff sought declaration that agreement with defendant terminated; defendant challenged jurisdiction of Irish courts; whether obligation the subject of the litigation was to be performed in Ireland; Art.5, Brussels Convention.

Held: Any obligation was to be performed in France; jurisdiction declined.

Bio-Medical Research Ltd. v. Delatex S.A. High Court: McCracken J. 06/05/1999

In determining whether the Court has jurisdiction to hear a claim under the Brussels Convention it is the place of discharge of the contractual duty in issue which the Court must examine rather than the entire contract. The unwritten agreement in this case was in the nature of an umbrella distribution agreement and the obligation in issue is an alleged obligation on the part of the defendant to distribute products in France. The High Court so held in refusing jurisdiction and saying that the plaintiff had failed to discharge the onus of establishing a jurisdiction in the Irish Courts.

1

JUDGMENT of Mr. Justice McCrackendelivered the 6th day of May. 1999.

2

The Plaintiff is an Irish company which produces and markets certain products under the brand name "Slendertone", and the Defendant is a French company which distributes pharmaceutical products in France. The original Slendertone products were produced by the predecessor in title to the Plaintiff, which went into receivership, and these products were distributed in France by the Defendant. In May 1990 the Plaintiff purchased the assets of the previous company excluding all distribution contracts. However, notwithstanding the exclusion of distribution contracts, in fact the Plaintiff continued the production of Slendertone products and continued to have those products distributed in France by the Defendant. Neither the Plaintiff nor its predecessor had any agreement in writing with the Defendant, but in fact the Defendant has been the sole distributor in France of these products since the mid 1980s.

3

In 1997 a dispute arose between the Plaintiff and the Defendant, as a result of which, by letter dated 14th October, 1997 the Plaintiff notified the Defendant that it intended to do business with other distributors in France, and that it intended to commence such business five months from the date of the letter. The Defendant maintains that it is the soleand exclusive distributor of the Plaintiff's products in France and on 7th April. 1998 the Plaintiff issued a Plenary Summons claiming, interalia.:-

4

2 "1. A declaration that the Plaintiff is not a party to an exclusive distribution agreement with the Defendant in relation to the sale and distribution of slimming products and/or services inFrance.

5

2. In the alternative, if any exclusive distribution agreement exists between the parties, which is denied, a declaration that the same was effectively terminated by a letter of termination, dated 14th October, 1997, from the Plaintiff to the Defendant.

6

4. Damages for breach of contract."

7

A Summons contained the usual certificate that the Court has power under the Jurisdiction of Courts and Enforcement of Judgments (European Community) Act 1988to hear and determine the claim. On 28th July, 1998 the Defendant entered an appearance to those proceedings for the purpose of contesting jurisdiction. The Defendant has now brought this Motion inviting the Court to decline jurisdiction in respect of the claims at paragraphs 1. 2 and 4 of the Endorsement of Claim.

8

The primary issue in this case is whether the correct forum for these proceedings is in Ireland or in France. The relevant provision is contained at Article 5.1 of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters "( theBrussels Convention)" . This Article provides:-

9

" a person domiciled in a contracting state may in another contracting state, be sued:-

10

1. In matters relating to a contract, in the Courts of the place of performance of the obligation in question."

11

There is one further matter which has some bearing on the problem. Every delivery of goods from the Plaintiff to the Defendant was accompanied by an invoice which sets out the terms and conditions of sale. There is no dispute between the parties as to the validity of these terms and conditions, but the Plaintiff strongly relies upon them in support of its argument that the place of performance of the obligation with which the action is concerned was, at least in part, in Ireland. The relevant extracts from the terms and conditions are as follows:-

"2. Price;
12

2 All prices shall be payable in the currency quoted. Unless otherwise agreed in writing by the Seller all prices quoted are ex-factory and exclusive of packaging, freight, insurance, taxes and any other similar charges.

"5. Delivery;
13

3 Delivery shall be within a time period agreed between the parties take place at the sellers premises at Bunbeg, Letterkenny, County Donegal unless otherwise agreed by the Seller inwriting."

"15. Governing Law;
14

4 This contract shall be governed by and construed in accordance with the laws of Ireland and the buyer hereby irrevocably submits to the jurisdiction of the Irish Courts in relation to all matters in disputehereunder."

15

In addition to relying on these terms and conditions as an argument that some or all of the obligation is to be performed in Ireland, the Plaintiff also seeks to amend the certificate on the Plenary Summons so as to add that the Court has power to hear the claim pursuant to Article 17 of the Brussels Convention. I propose to consider this...

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2 cases
  • Bio-Medical v Delatex
    • Ireland
    • Supreme Court
    • 21 Diciembre 2000
    ... ... BIO-MEDICAL RESEARCH LTD T/A SLENDERSTONE v. DELATEX SA BETWEEN/ BIO-MEDICAL RESEARCH LIMITED trading as SLENDERTONE PLAINTIFF ... ...
  • Rye Valley Foods Ltd v Fisher Frozen Foods Ltd
    • Ireland
    • High Court
    • 10 Mayo 2000
    ... ... 3 AER 362 KALFELIS V BANKHAUS SCHRODER 1988 ECR 5565 BIO MEDICAL RESEARCH LTD T/A SLENDERTONE V DELATEX SA UNREP MCCRACKEN 6.5.1999 ... ...

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