Bushell Interiors Ltd v Liecht Küchen A.G.

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Michael Moriarty
Judgment Date14 January 2014
Neutral Citation[2014] IEHC 3
Date14 January 2014

[2014] IEHC 3

THE HIGH COURT

[No. 9766 P/2010]
Bushell Interiors Ltd v Liecht Kuchen AG
(N. further redaction needed)

BETWEEN

BUSHELL INTERIORS LIMITED
PLAINTIFF

AND

LIECHT KÜCHEN A.G.
DEFENDANT

RSC O.12 r16

EEC DIR 653/1986 ART 17(3)

EUROPEAN COMMUNITIES (COMMERCIAL AGENTS) REGS 1994 SI 33/1994

EUROPEAN COMMUNITIES (COMMERCIAL AGENTS) REGS 1997 SI 31/1997

EEC REG 44/2001 ART 23

EEC REG 44/2001 ART 2(1)

EEC REG 44/2001 ART 5

EEC REG 44/2001 ART 5(1)

EEC REG 44/2001 ART 5(5)

MCCABE BUILDERS (DUBLIN) LTD v SAGAMU DEVELOPMENTS LTD 2011 3 IR 480 2009/33/8240 2009 IESC 31

CLARE TAVERNS T/A DURTY NELLYS v GILL T/A UNIVERSAL BUSINESS SYSTEMS 2000 1 IR 286 2000 2 ILRM 98

LEO LABORATORIES v CROMPTON BV 2005 2 IR 225 2005 2 ILRM 43 2005/36/7495 2005 IESC 31

O'CONNOR & DAN O'CONNOR JOINERY LTD v MASTERWOOD (UK) LTD & ORS UNREP SUPREME 1.7.2009 2009/44/11073 2009 IESC 49

BIO-MEDICAL RESEARCH LTD T/A SLENDERTONE v DELATEX SA 2000 4 IR 307 2001 2 ILRM 51 2000/2/509 2000 IESC 32

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 ART 5

CONTINENTAL BANK NA v AEAKOS COMPANIA NAVIERA SA & ORS 1994 2 AER 540 1994 1 WLR 588

EUROPEAN COMMUNITIES (COMMERCIAL AGENTS) REGS 1994 SI 33/1994 REG 4

EEC REG 44/2001 ART 13

RSC O.12 r26

Practice and procedure - Commercial law - Contract law - Agent - Commercial Agent - Jurisdiction - Onus of proof - Evidence Article 17(3) Council Directive 86/EEC on the Coordination of the laws of the Member States relating to Self-Employed Commercial Agents

Facts: The plaintiff sought damages for alleged breach of contract and sought compensation pursuant to Article 17(3) Council Directive 86/EEC on the Coordination of the laws of the Member States relating to Self-Employed Commercial Agents and their implementation into Irish law. The parties were engaged in a commercial relationship from around 2008, whereby the plaintiff supplied the defendant with high end kitchens for further distribution. The plaintiff submitted that the relationship went beyond that of supplier and purchaser. The Court considered whether a clause of the General Terms of Sale, Delivery and Payment of the plaintiff was binding upon the defendant for the purposes of Article 23 Regulation 44/2001 (Brussels I) or alternatively, whether the defendant was a commercial agent.

Held by Moriarty J. that the Court was not convinced that the plaintiff had made out a stateable case that that it was the agent of the defendant for the purposes of the Commercial Agents Regulations. The Court was not satisfied that the plaintiff had discharged the onus upon it to demonstrate that Article 5 of Brussels I should apply in the case. The purported agency would be invalid as it had not been adequately evidenced in writing.

1

JUDGMENT of Mr. Justice Michael Moriarty delivered on the 14th day of January, 2014

2

1. This matter comes before the court by way of the defendant's Notice of Motion seeking to set aside the within proceedings for want of jurisdiction, pursuant to Order 12 Rule 16 of the Rules of the Superior Courts ,1986, as amended.

3

2. The plaintiff is a limited company, having its registered office in the State. The defendant is a corporation with a registered office at Gmunder Strasse, 70 D-73550 Valdstetten, Germany.

4

3. In these proceedings, the plaintiff seeks damages for alleged breach of contract and interference with its economic interests. Furthermore, the plaintiff seeks compensation pursuant to Art. 17(3) of Council Directive 86/653/EEC of 18 th December, 1986, on the Co-Ordination of the Laws of Member States related to Self-Employed Commercial agents, which was implemented in Irish law by way of the European Communities (Commercial Agents) Regulations, 1994 ( S.I. 33 of 1994) and the European Communities (Commercial Agents) Regulations, 1997 ( S.I. 31 of 1997) (taken together, "the Commercial Agents Regulations").

5

4. The parties were engaged in a commercial relationship from around September of 2008, whereby the plaintiff supplied the defendant with what are described in the pleadings as "high end kitchens" for further distribution. The plaintiff submits that the relationship between the parties went beyond that of supplier and purchaser, and that it acted as agent for the defendant in this jurisdiction. The plaintiff claims, in support of this contention, that it had been listed on the defendant's website as a dealer and that it was referred to by the defendant in inter partes correspondence as a "highly qualified Leicht Master Dealer". It is common case, however, that any agency agreement between the parties was not reduced to writing at any point.

Legal Issues Arising
6

5. The defendant submits on various grounds that this court lacks the jurisdiction to adjudicate upon this matter. These submissions broadly centre around whether Clause 14 of the plaintiff's General Terms of Sale, Delivery and Payment ("Clause 14") is binding upon the defendant, having regard to the provisions of Article 23 of Regulation 44/2001, and in the alternative that the defendant is not a commercial agent.

7

6. In response, the plaintiff submits that Clause 14 applied only to the "particular legal relationship" as between the parties pursuant to the contract for sale, delivery and payment, and not to the purported relationship of principal and agent.

Council Regulation No. 44/2001
8

7. There is broad consensus between the parties as to the articles of Council Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (" Brussels I") that are relevant to this application. Article 2(1) sets out the well established general rule that:-

"Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State."

9

8. However, Article 5 sets out certain exceptions to the general rule, upon which the plaintiff seeks to rely:-

"A person domiciled in a Member State may, in another Member State, be sued:"

1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place ofperformance of the obligation in question shall be:

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· - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered

11

· - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,

12

(c) if subparagraph (b) does not apply then subparagraph (a) applies; ...

13

5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated".

14

9. Article 23 of Brussels I (regarding "Prorogation of Jurisdiction") provides the following:-

15

2 "1. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

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(a) in writing or evidenced in writing; or

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(b) in a form which accords with practices which the parties have established between themselves; or

18

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

19

2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to "writing".

20

3. Where such an agreement is concluded by parties, none of whom is domiciled in a Member State, the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

21

4. The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

22

5. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22."

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10. The plaintiff argues that, pursuant to Articles 5(1) and 5(5), the Courts of this jurisdiction are the appropriate forum to deal with this dispute, while the defendant submits that, notwithstanding these provisions, Clause 14 sets out a binding prorogation of jurisdiction for the purposes of Article 23.

Interpretation and Effects of Clause 14
24

11. Clause 14 provides, inter alia, the following:-

"Place where a Contract is to be fulfilled ndash; Venue ndash; Validity of Laws"

1. For all disputes arising from business relations, directly or indirectly, including payment problems with bills of exchange, acceptance or cheques, the involved parties agree, as merchants to the exclusive jurisdiction of the courts in Schwäbisch Gmünd. Moreover, the plaintiff is also entitled to sue/bring an action at the defendant's headquarters.

2. German law is exclusively valid for all sales and deliveries and all legally founded relations. The Vienna UN...

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