Clare Taverns v Gill

• Jurisdiction: Ireland
• Judge: Justice McGuinnes
• Judgment Date: 16 November 1999
• Neutral Citation: [1999] IEHC 42
• Court: High Court
• Docket Number: No. 1479p/1998,[1998/1479 P]
• Date: 16 November 1999

[1999] IEHC 42

THE HIGH COURT

No. 1479p/1998

CLARE TAVERNS T/A DURTY NELLY'S v. UNIVERSAL BUSINESS SYSTEMS

BETWEEN

CLARE TAVERNS TRADING AS DURTY NELLY'S

PLAINTIFF

AND

CHARLES GILL TRADING AS UNIVERSAL BUSINESS SYSTEMS

DEFENDANT

AND

TEC (UK) LIMITED

FIRST NAMED THIRD PARTY

AND

ANTHONY HOURIGAN (OTHERWISE ANTHONY HORRIGAN)

SECOND NAMED THIRD PARTY

AND

COMPUTATILL EPOS LIMITED

THIRD NAMED THIRD PARTY

Citations:

RSC O.16 r8(3)

BRUSSELS CONVENTION 1968 ART 17

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 6.2

BRUSSELS CONVENTION 1968 ART 2

BRUSSELS CONVENTION 1968 ART 5

BRUSSELS CONVENTION 1968 ART 6

GALERIES SEGOURA SPRL V BONAKDARIAN 1976 ECR 1851

HOUGH V P & O CONTAINERS LTD (THIRD PARTIES BLOHM & VOSS HOLDING AG) 1998 2 AER 978

DICEY & MORRIS CONFLICT OF LAWS 12ED 4TH CUMULATIVE SUPP (1997) 51

BRITISH AEROSPACE PLC V DEE HOWARD CO 1993 1 LLOYDS REP 368

CONTINENTAL BANK NA V AEOKOS CIA NAVIERA SA 1994 2 AER 540

HOLFELD PLASTICS LTD V ISAP OMV GROUP SA UNREP GEOGHEGAN 19.3.1999

MAINNSCHIFFAHRTS-GENOSSENSCHAFT EG (MSG) V LES GRAVIERES RHENANES SARL 1997 ECR-1 911

ANTAIOS CIA NAVIERA SA V SALEN REDERIERENA AB, THE ANTAIOS 1984 3 AER 229

EMPRESA EXPORTADORA DE AZUCAR V INDUSTRIA AZUCARERA NACIONAL SA 1983 2 LLOYDS REP 171

Synopsis

Practice & Procedure

Practice and procedure; jurisdiction; Brussels Convention; contract; agreement whereby defendant agreed to purchase and first named third party agreed to supply computer equipment; first named third party claims contract governed by conditions of sale appearing on reverse side of invoice sent to defendant; conditions contained clause stating that any contract of which conditions formed part shall be governed by laws of England and buyer submits to the jurisdiction of the English courts; first named third party seeks setting aside of third party proceedings against it or alternatively the striking out of the third party proceedings against it on grounds that by virtue of Article 17, Brussels Convention, 1968 and the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 the court has no jurisdiction to hear and determine plaintiff's claim against it; whether court has jurisdiction to hear and determine plaintiff's claim against first named third party; whether clause is an exclusive jurisdiction clause; whether clause constitutes agreement within meaning of Article 17, Brussels Convention; whether clause extends to reliefs other than that of breach of contract.

Held: Service of third party notice on first named third party set aside.

Clare Taverns v. Gill - High Court: McGuinness J. - 16/11/1999 - [2000] 1 IR 286 - [2000] 2 ILRM 98

The jurisdiction clause in the present case is one which provides for the exclusive jurisdiction of the English Courts in relation to disputes arising out of the contract between the defendant and the first third party and having regard to the course of trading between them and the fact that the clause was repeatedly set out in invoices sent by the first third party the Court was satisfied that there was consensus between the parties as to this clause. Further, the claims in relation to negligence, breach of duty and misrepresentation were intimately bound up with the contractual claim and should be heard together. The High Court so held in saying that the Irish Courts had no jurisdiction to hear and determine the defendant's claim against the first third party.

1 Justice McGuinnes delivered the 16th of November, 1999.

2 This is Motion on Notice brought pursuant to Order 16 Rule 8(3) of the Rules of the Superior Courts seeking the setting aside of third party proceedings against the first named third party or alternatively the striking out of these party proceedings as against the first named third party on the grounds that by virtue of Article 17th of the Brussels Convention 1968, which is incorporated into Irish law by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, this Court has no jurisdiction to hear and determine the Plaintiff's claim against the first named third party.

3 The Action itself is brought by the Plaintiff, an Irish company which carries on the business of publican and restaurateur at the licensed premises known as Durty Nelly's at Bunratty, Co. Clare, against the Defendant, who is also Irish, and who carries on the business of shop and office equipment supplier. In broad outline the Action arises out of the sale and installation of a cash control system at the Plaintiff's licensed premises which the Plaintiff claims was defective and unfit for the purpose. The Defendant has by Order of this Court (Johnson J.) made the 9th day of November, 1998 served third party notices on three third parties the first of which is TEC (UK) Limited, the mover of the present Motion. It is common case that the said first named third party supplied the Defendant with cash control computer terminals and related equipment for use in the Plaintiff's cash control system (the necessary "hardware"). There is an issue between the Defendant and the first named third party as to whether the first named third party had any involvement in the supply and installation of the "software" involved in the cash control system, but this is not relevant to the issues before this Court on the Notice of Motion.

4 It is established by the Affidavit of Peter Dodd, manager of the reseller division of the first named third party, the TEC (UK) Limited is a company domiciled in England, and indeed this is not denied by the Defendant.

5 The Defendant in his Third Party Notice relies on Articles 5.1, 5.3 and 6.1 and/or 6.2 of the Brussels Convention to establish the jurisdiction of this Court to hear and determine the proceedings.

6 The relevant Articles of the Brussels Convention provide as follows:-

Article 2

7 Subject to the provisions of his Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the Courts of that State.

Article 5

8 A person domiclied in a Contracting State may, in another Contracting State, be sued:

9 1. In matters relating to a contract, in the Courts for the place of performance of the obligation in question;...

10 3. In matters relating to tort, delict or quasi-delict, in the Court for the place where the harmful even occurred;...

Article 6

11 A person domiciled in Contracting State may also be sued;

12 1. Where he is one of a number of Defendants, in the Courts for the place where any one of them is domiciled;

13 2. As a third party on an action on a warranty or guarantee or in any other third party proceedings, in the Court Seised of the original proceedings, unless these were instituted solely with the objects of removing him from the jurisdiction of the Court which would be competent in his case;...

Article 17

14 If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a Court or the Court of a Contracting 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 exclusive jurisdiction. Such an agreement conferring jurisdiction shall be either in writing or evidenced in writing or, in international trade or commerce, in a form which accords with practices in that trade or commerce of which the parties are or ought to have been aware....."

15 Counsel for the first named third party submitted that Article 17 took priority over and excluded the special jurisdiction provided under Articles 5 and 6. In stating this she relied on the judgment of the European Court of Justice in the case of Galeries Segoura SPRL -v- Bonakdarian [1976] ECR 1851. In that case the Court stated (at page 1860) in relation to Article 17:

"The way in which that provision is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down by Article 2 and the special jurisdictions provided for in Articles 5 and 6 of the Convention."

16 The question has been further considered by the English Court in the recent case of Hough -v- P and O Container Limited (Blohm + Voss Holding AG and Others third Parties) [1998] 2 All ER 978, in which it was held, as set out in the headnote, that having regard to the use of the word "may", the special jurisdiction under Article 6(2) of the Convention was merely permissive. However, Article 17 was expressed in mandatory terms and therefore had the effect excluding that jurisdiction. It follow that, where it applied, Article 17 took priority over Article 6(2). The learned Rix J. in his judgment (at page 986) stated:

"In my judgment, however, Mr Melville has confused the relationship between Article 2 and the special jurisdictions within Section 2 of the Convention on the one hand with the relationship between Article 17, under Section 6 dealing with prorogation of jurisdiction, and other jurisdictions under the Convention on the other hand, In the former case, Article 6(2) is indeed a "special jurisdiction", and where it is properly applied will override the basic rules set out in Article 2. That, however, the upholding of a special jurisdiction is permissive and not mandatory is emphasised by the word "may" which appears in Article 5 and 6, and is well illustrated by the reasoning in Kinnear's case itself. Article 17, however, where it applies, is mandatory ("shall have exclusive jurisdictions under Articles 5 and 6 but even the mandatory (but not of course universal) principle of Article 2 itself (where Article 17...