Campbell International Trading House Ltd v Van Aart

• Jurisdiction: Ireland
• Judgment Date: 28 January 1992
• Date: 28 January 1992
• Docket Number: [1990 No. 4333P]
• Court: Supreme Court

High Court

Supreme Court

[1990 No. 4333P]

Campbell International Trading House Ltd. v. Peter Van Aart

Campbell International Trading House Limited and Nature Pure Limited

Plaintiffs

and

Peter Van Aart and Natur Pur G.m.b.H.

Defendants

Cases mentioned in this report:—

Cripps Warburg Ltd. v. Cologne Investment Company Ltd. [1980] I.R. 321.

De Bloos v. Bouyer (Case 14/76) [1976] E.C.R. 1497; [1977] 1 C.M.L.R. 60.

Elefanten Schuh G.m.b.H. v. Jacqmain (Case 150/80) [1981] E.C.R. 1671; [1982] 3 C.M.L.R. 1.

Gerling v. Administrazione del Tesoro dello Stato (Case 201/83) [1983] E.C.R. 2503; [1984] 3 C.M.L.R. 638.

Ivenel v. Schwab (Case 133/81) [1982] E.C.R. 1891; [1983] 1 C.M.L.R. 538.

Kurt v. Stella Musical Veranstelle G.m.b.H. [1992] Ch. 196.

Kutchera v. Buckingham International Holdings Ltd. [1988] I.R. 61.

Rohr S.A. v. Ossberger (Case 27/81) [1981] E.C.R. 2431; [1982] 3 C.M.L.R. 60.

Shenavi v. Kreischer (Case 266/85) [1987] E.C.R. 239; [1987] 3 C.M.L.R. 782.

Tessili v. Dunlop AG (Case 12/76) [1976] E.C.R. 1473; [1977] 1 C.M.L.R. 26.

Unidare Ltd. v. Scott [1991] 2 I.R. 88.

Union Transport Group plc v. Continental Lines [1992] 1 All E.R. 161.

European Communities - Brussels Convention on Jurisdiction of Courts - Terms of Convention applicable in this jurisdiction - Provision that a party to a contract may be sued "in the courts for the place of performance of the obligation in question" - Plaintiff issued proceedings in Ireland claiming damages for breach of contract - Defendant alleged to have breached contract for establishment of joint venture between the parties for sale and supply of Irish goods into Germany - Whether Germany the "place of performance" of the contract - Test for determining "place of performance" - Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968, Article 5 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3).

Practice - Appearance - Appearance to contest jurisdiction - Brussels Convention providing that where a defendant enters an appearance to a claim in the court of a Contracting State that court has jurisdiction to hear the action unless the appearance is entered solely to contest jurisdiction - Rules of the Superior Courts envisaging two methods of entering an appearance to an action - Entry of appearance simpliciter and entry of appearance solely to contest jurisdiction - Rules not providing mechanism for contesting jurisdiction on entry of appearance - Defendant entering appearance simpliciter - Manner in which appearance solely to contest jurisdiction may be entered - Whether a defendant who enters an appearance solely to contest jurisdiction is prohibited, in the event of the challenge being unsuccessful or abandoned, from defending the action on the merits - Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968, Articles 2 and 18 - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 19, r. 28 and O. 12 - Rules of the Superior Courts, 1989 (S.I. No. 14), O. 13 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3).

European Communities - Brussels Convention on Jurisdiction of Courts - Provision for entry of two types of appearance - Type of appearance entered may determine whether court has jurisdiction to hear action - Whether Rules of Superior Courts provide mechanism for entry of appearance solely to contest jurisdiction - Method for entering an appearance solely to contest jurisdiction - Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968, Articles 2 and 18 - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 19, r. 28 and O. 12 - Rules of the Superior Courts, 1989 (S.I. No. 14), O. 13 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3).

Appeal from the High Court.

The facts and relevant statutory provisions have been summarised in the headnote and are set out in the judgments of Morris J. and Finlay C.J., post.

By plenary summons issued on the 23rd March, 1990, the plaintiffs sought damages from the defendants for breach of contract and misrepresentation. On the 24th April, 1990, the defendants entered an appearance to the summons. By notice of motion dated the 19th February, 1991, the defendants sought an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts, 1989, striking out the proceedings. The application was heard by the High Court (Morris J.) on the 30th and 31st May, 1991.

By notice of appeal dated 20th June, 1991, the plaintiffs appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaherty and Egan JJ.) on the 28th January, 1992.

The Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, ("the Act of 1988") incorporates into Irish law the provisions of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968 ("the Convention").

Article 2 of the Convention provides:—

"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."

Article 5 of the Convention provides:—

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

Article 18 of the Convention provides:—

"Apart from jurisdiction derived from other provisions of this Convention, a court of a Contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 16."

Order 12 of the Rules of the Superior Courts, 1986, makes provision for the entry of an appearance to an action but does not establish a mechanism for the entry of an appearance solely to contest jurisdiction. Order 13 of the Rules of the Superior Courts, 1989, refers to an "appearance entered solely to contest jurisdiction" but does not provide a mechanism for the entry of such an appearance.

The first plaintiff alleged that, in November, 1989, it and the first defendant made an agreement to enter into a joint venture "for the sale and supply of Irish products into the German marketplace." The joint venture envisaged the incorporation of two companies, the second plaintiff and the second defendant, though these companies were never incorporated. It was further alleged that in December, 1989, the first defendant indicated that he no longer wished to be bound by the terms of the agreement. On the 23rd March, 1990, the first plaintiff issued a plenary summons claiming damages for breach of contract. On the 20th April, 1990, the first defendant entered an appearance and served notice of entry of appearance by which he requested delivery of a statement of claim. Following the delivery of a statement of claim on the 31st May, 1990, the first defendant raised particulars thereto. These particulars were replied to on the 3rd January, 1991.

On the 19th February, 1991, the first defendant issued a motion by which he sought an order striking out the proceedings on the ground that the High Court had no jurisdiction to entertain the action.

It was contended on behalf of the first defendant that as he was domiciled in Germany he should, by virtue of Article 2 of the Convention, be sued in...