Campbell International Trading House Ltd v Van Aart

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-HC 1703
• Court: High Court
• Docket Number: Record No. 4333P/1990
• Date: 01 January 1992

1991 WJSC-HC 1703

THE HIGH COURT

Record No. 4333P/1990

CAMPBELL INTERNATIONAL TRADING HOUSE LTD v. VAN AART

BETWEEN

CAMPBELL INTERNATIONAL TRADING HOUSE LIMITED AND NATURE PURELIMITED

PLAINTIFFS

AND

PETER VAN AART AND NATUR PUR gmbh

DEFENDANTS

Citations:

RSC O.19 r28

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

BRUSSELS CONVENTION 1968 ART 5(1)

BRUSSELS CONVENTION 1968 ART 5(3)

BRUSSELS CONVENTION 1968 ART 6(1)

BRUSSELS CONVENTION 1968 ART 2

BRUSSELS CONVENTION 1968 ART 18

BRUSSELS CONVENTION 1968 ART 16

ELEFANTIN SCHUH V PIERRE JACQMAIN 1982 2 CMLR 1

RSC O.12

RULES OF SUPERIOR COURTS (NO 1) 1989 SI 14/1989 O.13

RULES OF SUPERIOR COURTS (NO 1) 1989 SI 14/1989 O.5 r3

ROHR 1981 ECR 2431

DE BLOOS V BOUYER 1976 ECR 1497

GERLING & ORS V AMMINISTRAZIONE DEL TESORO DELLO STATO 1983 ECR 2503

Synopsis:

CONFLICT OF LAWS

Jurisdiction

Exercise - Contract - Breach - Damages - Parties - Irish company and German national - Place of performance of relevant obligation - (1990/4333 P - Morris J. - 7/6/91) - [1992] 2 I.R. 305

|Campbell International Trading House v. Van Aart|

HIGH COURT

Jurisdiction

Contract - Breach - Damages - Conflict of laws - Parties - Irish company and German national - Place of performance of relevant obligation - (1990/4333 P - Morris J. - 7/6/91) - [1992] 2 I.R. 305

|Campbell International Trading House v. Van Aart|

PRACTICE

Action

Dismissal - Cause of action - Absence - Conflict of laws - Jurisdiction of High Court - Contract - Obligation - Place of performance - Parties - Conditional appearance - Agreement between Irish company and German national - Jurisdiction of courts and Enforcement of Judgments (European Communities) Act, 1988, ss. 1, 3, 1st schedule - (1990/4333 P - Morris J. - 7/6/91) - [1992] 2 I.R. 305

|Campbell International Trading House v. Van Aart|

PRACTICE

Parties

Appearance - Restriction - Propriety - Court - Jurisdiction - Challenge - Contract - Obligation - Place of performance - Conditional appearance - Agreement between Irish company and German national - (1990/4333 P - Morris J. - 7/6/91) - [1992] 2 I.R. 305

|Campbell International Trading House v. Van Aart|

1 Judgment of Mr. Justice Morrisdelivered the 7th day of June 1991

2 This is an application brought by the first named Defendant pursuant to Order 19 Rule 28 of the Superior Court Rules seeking an Order to strike out the proceedings herein on the grounds that it discloses no cause of action against the first named Defendant and more particularly that the Court has no jurisdiction to entertain the action.

3 The second named Defendant in support of his application relies upon the provisions of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988(hereinafter referred to as "the Convention").

4 The facts which give rise to this action may be shortly summarized asfollows

5 The first named Plaintiff alleges that on the 7th of November 1989 it and the first named Defendant, a German national domiciled in Germany, entered into an agreementwhereby they agreed that they would enter into a joint venture for the marketing of Irish products within the German market-place. This joint venture envisaged the incorporation of two companies one in Ireland and one in Germany. They were to have been respectively the second named Plaintiff and the second named Defendant. In fact neither of these companies was incorporated.

6 It is alleged by the first named Plaintiff that on the 9th of December 1989 the first named Defendant indicated that he no longer wished to abide by the terms of the agreement dated the 7th of November 1989 and further confirmed this intention by letter dated the 10th of December 1989. The first named Plaintiff accordingly claims that it has suffered loss and damage as a result of breach of contract and or misrepresentation and claims damages and consequential reliefs.

7 In fact I am satisfied that the entire basis for this action would lie in a claim for damages for breach of contract.

8 On the 23rd of March 1990 the first named Plaintiff issued an originating plenary summons against the 1st and 2nd named Defendants in the following terms

"The Plaintiff's claim is"

9 I Damages for breach of contract and or misrepresentation

10 II If necessary an Order directing the taking of all necessary accounts and making of all necessary enquires

11 III Further and other relief

12 IV Interest pursuant to statute

13 V Costs (including VAT)

14 This Honourable Court has power under the provisions of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988to hear and determine the Plaintiff's claim herein pursuant to the provisions of Article 5 (1), 5 (3) and 6 (1) of the 1968 Convention.

15 No proceedings between the parties concerning the same cause of action is pending between the parties in another Contracting State within the meaning of the said Act of 1988".

16 To this an appearance was entered on behalf of the first named Defendant on the 20th of April 1990, in which he required delivery of a statement of claim, and the Plaintiff duly delivered a statement of claim on the 31st of May 1990. The first named Defendant raised particulars thereto on the 22nd of June 1990 and these particulars were replied to on the 3rd of January 1991. The present motion issued on the 19th of February1991.

17 The first named Defendant alleges that the Court has no jurisdiction to entertain the case by reason of Article 2 of the Convention whichprovides:-

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

18 It is accepted that the first named Defendant is domiciled in Germany. The general provision of Article 2 is however subject to the provisions of Section 2 Article 5.1 which provides

"A person domiciled in a Contracting State may, in another Contracting State, be sued in mattersrelating to a contract, in the courts for the place of performance of the obligation in question".

19 It is submitted on behalf of the Plaintiff that the obligation in question is at least in part to be performed in Ireland and that accordingly it is entitled to sue the first named Defendant in this jurisdiction. The first named Defendant denies that the obligation in question is to be performed in Ireland and says that the obligation in question was the "marketing of Irish...