Carlyle Aviation Management Ltd and Another v Lloyd's Insurance Company S.A and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 06 December 2023
• Neutral Citation: [2023] IECA 291
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2023 234

Between

Carlyle Aviation Management Limited

and

Sasof III (D) Aviation Ireland DAC

Plaintiffs

and

Lloyd's Insurance Company S.A., Ingosstrakh Insurance Company, Convex Europe S.A., Aig Eirope S.A., HDI Global Specialty Se Sweden, Liberty Mutual Insurance Europe Se, Allianz Global Corporate and Specialty Se, La Réunion Aérienne

and

Axis Specialty Europe Se trading as Aviabel Belgium

Defendants

[2023] IECA 291

Costello J.

Allen J.

O'Moore J.

Appeal Number: 2023 234

THE COURT OF APPEAL

CIVIL

Set aside service – Want of jurisdiction – O. 12, r. 26 of the Rules of the Superior Courts – Appellant appealing against the judgment and order refusing a motion for an order setting aside the service of notice of the plenary summons for want of jurisdiction – Whether the appellant could identify any analytical error in the judgment

Facts: The plaintiffs/respondents, Carlyle Aviation Management Ltd and Sasof III (D) Aviation Ireland DAC, by the action, commenced by plenary summons issued on 5th April, 2023, claimed declarations that they were entitled to indemnity on foot of two insurance policies – a War Risks Policy and an All Risks Policy – in respect of the claimed loss of two Boeing 737-800 aircraft which were leased to Joint Stock Company NordStar Airlines (NordStar) – Russian Federation company – and were said to have been seized by the Russian Federation following the invasion of Ukraine; payment of the agreed value of the aircraft, less an agreed excess; and damages, inter alia for breach of contract, negligence and breach of duty, conspiracy, intentional interference with economic relations and causing loss by unlawful means. The second defendant/appellant, Ingosstrakh Insurance Company (a Russian Federation corporation) was one of nine insurance companies who were sued as being severally liable for various percentages of the loss claimed. The Court of Appeal heard the appellant’s appeal against the judgment and order of the High Court (McDonald J) of 13th July, 2023 refusing a motion for an order pursuant to O. 12, r. 26 of the Rules of the Superior Courts to set aside the service of notice of the plenary summons for want of jurisdiction. The amended grounds of appeal ran to twenty numbered paragraphs over five pages. At para. 15 it was said that the judge erred in law in concluding that the respondents had provided evidence and submissions that they had a good arguable case that the action was brought in relation to a contract which by its terms or by implication was to be governed by Irish law: but not why. The appellant pointed to the references in the Operator’s Policy, Insurance Contract No. 494-121918/21, to the respondents as “Additional insureds” and to the governing law and jurisdiction clause in the Operator’s Policy which stipulates for the law and exclusive jurisdiction of the Insured; who, under the Operator’s Policy, was NordStar. Separately, at paras. 16 and 17 it was said that the judge erred in concluding that the respondents had provided evidence and submissions sufficient to demonstrate that they had a good arguable case under O. 11, rr. 1(f) and (h): but not why. At para. 18 it was again asserted that the appellant was not domiciled in Ireland so that Articles 4(1), 7(1), 8(1), 11(1)(a), 11(1)(b) and 11(1)(c) of Regulation (E.U.) No. 1215/2012 of 12 December 2012 on ‘Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters’ had no application. While those provisions were among those listed in the omnibus indorsement of jurisdiction on the summons, they were never relied on by the respondents or by the judge. At para. 20, it was asserted that the judge erred in his application of the test for jurisdiction asserted under Article 25(1) of the Regulation: but not how.

Held by Allen J that by the end of the oral hearing, the unanswered question, as to whether the court ought to entertain an argument which had not been identified in the party’s written submission had evaporated. Having put the appellant’s case as best he could, in the end, counsel accepted that he could not identify any analytical error in the judgment of the High Court. There was no substance to the appeal and Allen J had no hesitation in dismissing it.

Allen J held that there would be an order dismissing the appeal and affirming the order of the High Court.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 6 ^th day of December, 2023 .

Introduction

1 . On this day last week the court heard the appeal by Ingosstrakh Insurance Company, a Russian Federation corporation (“the appellant”) against the judgment and order of the High Court (McDonald J.) of 13 ^th July, 2023 refusing a motion for an order pursuant to O. 12, r. 26 of the Rules of the Superior Courts to set aside the service of notice of the plenary summons for want of jurisdiction.

2 . In the ordinary way, my colleagues and I had read and considered the voluminous papers – three folders of papers and the two folders of authorities – filed on behalf of the appellant in advance, and at the conclusion of the oral hearing we were quite satisfied that we could give our decision that the appeal failed and must be dismissed. I now give my reasons for that decision.

The action

3 . By the action, commenced by plenary summons issued on 5 ^th April, 2023, the plaintiffs (“the respondents”) claim declarations that they are entitled to indemnity on foot of two insurance policies – a War Risks Policy and an All Risks Policy – in respect of the claimed loss of two Boeing 737–800 aircraft which were leased to Joint Stock Company NordStar Airlines (“NordStar”) – Russian Federation company – and are said to have been seized by the Russian Federation following the invasion of Ukraine; payment of the agreed value of the aircraft, less an agreed excess; and damages, inter alia for breach of contract, negligence and breach of duty, conspiracy, intentional interference with economic relations and causing loss by unlawful means.

4 . The appellant is one of nine insurance companies who are sued as being severally liable for various percentages of the loss claimed.

5 . Before the summons was issued, an ex parte application was made on behalf of the respondents to the High Court for an order pursuant to O. 11, rr. 1(e)(iii), (f) and (h) of the Rules for liberty to issue and serve the then intended proceedings on the appellant outside the jurisdiction, and for an order pursuant to O. 10, r. 1 permitting substituted service of the proceedings by e-mail; and an order accordingly was made by the High Court (McDonald J.) on 31 ^st March, 2023.

6 . All of the defendants bar the appellant are E.U. domiciled. The summons was indorsed with an omnibus indorsement to the effect that:-

“The High Court has power to hear and determine the claim of the plaintiff as against each of the defendants under and by virtue of Articles 4(1), 7(1), 8(1), 11(1)(a), 11(1)(b), 11(1)(c), 11(2), 15(5), 16 and/or 25(1) of Regulation (E.U.) No. 1215/2012 of 12 December 2012 on ‘Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.’ The High Court therefore has jurisdiction and ought to assume jurisdiction in relation to each of the defendants. There are no proceedings pending between the plaintiffs and any of the defendants concerning the same causes of action in any other Member State of the European Union.”

7 . If a purist draftsman would have included a separate indorsement as to jurisdiction in respect of each of the defendants, or, perhaps, separate indorsements in respect of those defendants who are domiciled in the E.U. and in respect of the appellant, who is not, anyone with a passing familiarity with Regulation (E.U.) No. 1215/2012 (“ Brussels I Recast”) would know that of the provisions listed in the omnibus indorsement, only Article 25(1) applies to a defendant who is not domiciled in the E.U. and does not have a branch, agency or other establishment in the State. The summons shows on its face that the appellant's registered office is in Moscow and there is no suggestion that it is domiciled in Ireland or that it has a branch, agency or other establishment here.

8 . The respondents' position was and is that the High Court has jurisdiction to hear and determine its claims against the appellant under Article 25 (1) of Brussels I Recast but made the application under O. 11 from an abundance of caution.

9 . Following the issue of the summons on 5 ^th April, 2023, notice of the proceedings was given to the appellant by e-mail of 12 ^th April, 2023. A conditional appearance was entered on behalf of the appellant on 5 ^th May, 2023 for the purpose of contesting jurisdiction, and the motion the subject of this appeal was issued on behalf of the appellant on 6 ^th June, 2023.

The motion to set aside service

10 . The appellant's motion to set aside service was grounded on an affidavit of Mr. Dmitri Makelov, head of the appellant's department of analytics and general legal practice. In the High Court, it was common case that although the appellant was the moving party, the onus was on the respondents to justify the service, which they did by filing a short replying affidavit of Mr. Tom Casey, solicitor, which was filed on 16 ^th June, 2023, and by relying on the affidavits of Mr. Marcus Miller, a director of the second respondent, filed on 27 ^th March, 2023 and Mr. Enda Hurley, solicitor, filed on 30 ^th March, 2023, in support of the ex parte application.

11 . The onus having been on the respondents to justify service out of the jurisdiction on the appellant, the logical starting point is to look at the respondents' evidence and arguments.

12 . Mr. Miller started by describing all of the parties. The first respondent is a Bermuda registered company which is registered in Ireland as an external company and has a registered address...