Caudron v Air Zaire

• Jurisdiction: Ireland
• Judge: Finlay C.J.
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-SC 992
• Court: Supreme Court
• Docket Number: [S.C. No. 91 of
• Date: 01 January 1986

CAUDRON v. AIR ZAIRE & AER LINGUS

Between

Serge Caudron and Others

Plaintiffs/

Respondents

and

Air Zaire

Defendants/

Appellants

and

Aer Lingus and Aer Rianta

Notice Party

1985 WJSC-SC 992

Finlay C.J.

Henchy J.

Hederman J.

91/85

The Supreme Court

Synopsis:

INJUNCTION

Interlocutory

Mareva relief - Foreign aeroplane - Foreign airline company - Claims of company's employees - Plaintiffs seeking to prevent removal of aeroplane from Irish airport - Service of notice of summons outside jurisdiction - Plaintiffs not entitled to effect such service - Plaintiffs not entitled to injunction - (91/85 - Supreme Court - 26/4/85).

Caudron v. Air Zaire

PRACTICE

Summons

Service - Service out of jurisdiction - Whether permissible - Substantive claim not warranting service of summons outside jurisdiction - Ancillary claim for injunction restraining disposal by defendant of an asset situated within the State - Ancillary claim insufficient to justify invocation of order 11, r. 1(g), of Rules of Superior Courts, 1962 - (91/85 - Supreme Court - 26/4/85).

Caudron v. Air Zaire

1 Judgment delivered on the 26th day of April 1985by Finlay C.J. [Nem Diss]

2 This is an appeal brought by the Defendants who are the national airline of Zaire against two Orders made by Barr J. in the High Court on the 29th March 1985.

3 Those Orders were

4 (a) the refusal of an application by the Defendants on Motion pursuant to Order 12, rule 26 of the Rules of the Superior Courts for an Order setting aside the Order of Costello J. made on the 12th March 1985 giving libertyto the Plaintiffs to issue an Originating Plenary Summons against the Defendants and liberty to serve notice of it outside the jurisdiction,and

5 (b) the granting of an Interlocutory Injunction to the Plaintiffs in the form of what has become known as a Mareva Injunction restraining the Defendants pending the hearing of the action or until further order, from removing out of the jurisdiction, parting with possession of, mortgaging or charging or disposing of or dealing in any way whatsoever with a Boeing 737 aeroplane, registration number 9QCNI, at present situate at Dublin Airport, so as to reduce the unencumbered value thereof to less than 1,820,750 punts.

Facts

6 The facts appearing from the Affidavits filed in the High Court which are relevant to the issues arising on these two appeals may thus besummarised.

7 1. The Plaintiffs are either ex-employees or the representatives of deceased ex-employees of the Defendants and each of them is owed a substantial sum ofmoney (the amount of which is in many instances in dispute) in respect of arrears of salary, loss of pension rights, loss of sick pay and, in some instances, damages for breach of contract including wrongfuldismissal.

8 2. The Defendants as the national airline of Zaire carry on business and have their headquarters in Zaire and do not carry on business nor have any agency in this country.

9 3. The contracts upon which the Plaintiffs sue were made outside the jurisdiction of this country and the alleged breaches of them were committed outside the jurisdiction of this country.

10 4. Each of the contracts contains a clause which purports to grant exclusive jurisdiction over questions of dispute arising under the contract to the courts of Zaire, though the effectiveness of this clause is in issue. The Boeing 737 aeroplane is within the jurisdiction of these courts by reason only of the fact that it was delivered to Dublin Airport for the purpose of having repairs and maintenance carried out to it on contract byAer Lingus and Aer Rianta. At the time of the hearing before the High Court and in this Court the amount due in respect of such maintenance and repairs is in the region of 1.8 million Irish pounds and Aer Lingus and Aer Rianta claim a lien on the aeroplane until that amount is paid or satisfied.

11 5. Most of the Plaintiffs have already brought proceedings against the Defendants in Belgium in respect of these claims. Those who did obtained judgments in the courts of first instance for varying amounts in respect of their claims. Some of these judgments have been appealed and the claims dismissed by an appellate court on the grounds that the Belgian courts had no jurisdiction in the matter. The remaining judgments are subjects to appeal and it is agreed by the parties hereto that the same decision will be given in those cases.

12 6. The reason why the Plaintiffs instituted these proceedings in this jurisdiction is that they assert that the only free asset of the Defendants available for satisfaction of the amounts which are due to them is theBoeing 737 aeroplane at present in Dublin Airport and it is their stated objective that it should be preserved within the jurisdiction of this Court as an asset ready to satisfy a judgment against the Defendants until the determination by the courts here of their claim for monies due on foot of the contracts or for damages for breach thereof.

The Law

13 The Plaintiffs" claim is

14 2 "1. An injunction restraining the Defendant, his servants or agents or any person acting in concert with or any person who knows of the making of such an order, from removing out of the jurisdiction, parting with possession of, selling, mortgaging or charging or in any way dealing in or disposing of the aeroplane, details of which are set forth in the Scheduele hereto, so as to reduce the unencumbered value of the said aeroplane to a sum of less than 113,887,939 Belgianfrancs.

15 3 2.Judgment for the sum of 113,887,939 Belgian francs in respect of loss and damage sustained by the Plaintiffs as a result of the breach of contract of the Defendant.

16 4 3.Further or other alternative relief, and

17 5 4.Costs.

18 The Plaintiffs do not contend that there are any grounds on which they could be entitled to an injunction in the form contained at paragraph 1 of the Endorsement of Claim except in so far as it was temporary and confined in time until the determination of their claim for damages for breach of contract and until the satisfaction of the amounts, if any, obtained by way of judgment in that claim.

19 The Plaintiffs also concede that their claim for damages for breach of contract on the facts is not one which if it stood on its own could properly be the subject matter of an order made pursuant to Order 11, rule 1 of the Rules of the Superior Courts, giving them liberty to issue a summons and serve notice of it on the Defendants out of thejurisdiction.

20 Whilst each of these two appeals must separately be dealt with it is clear and has not been disputed by Counsel on behalf of the Plaintiffs that if the Defendants are entitled to an order pursuant to Order 12, rule 26 of the Rules of the Superior Courts, settingaside the order giving to them, the Plaintiffs,...