O'Connor & Dan O'Connor Joinery Ltd v Masterwood (UK) Ltd & National Irish Investment Bank Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 01 July 2009
• Neutral Citation: [2009] IESC 49
• Court: Supreme Court
• Date: 01 July 2009

O'Connor & Dan O'Connor Joinery Ltd v Masterwood (UK) Ltd & National Irish Investment Bank Ltd

BETWEEN

DAN O'CONNOR AND DAN O'CONNOR JOINERY LIMITED

PLAINTIFFS / APPELLANTS

AND

MASTERWOOD (UK) LIMITED

DEFENDANT

MASTERWOOD SpA

DEFENDANT/RESPONDENT

AND

NATIONAL IRISH INVESTMENT BANK LIMITED

DEFENDANT

[2009] IESC 49

Denham J.

Geoghegan J.

Fennelly J.

307/06

No. 7690P/2003

THE SUPREME COURT

PRACTICE AND PROCEDURE

Jurisdiction

Conflict of laws - Brussels Regulation - Contract - Commercial agreement - General terms and conditions - Interpretation - Exclusive jurisdiction clause - Whether clause in writing or evidenced in writing - Whether clause formed part of agreement - Leo Laboratories Ltd v Crompton BV [2005] 2 IR 225 and Bio-Medical Research Ltd v Delatex SA [2000] 4 IR 307 applied; Leathertex v Bodetex (Case C-420/97) [1999] ECR I-6747, MSG v Gravieres Rhénanes (Case C-106/95) [1997] ECRI-911 considered - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988 (No 3) - Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 1968, art 17 - Regulation (EC) No 44/2001, art 23 - Plaintiff's appeal dismissed (2003/7690P - Fennelly J - 1/07/2009) [2009] IESC 49

O'Connor v Masterwood (UK) Limited

EEC REG 44/2001 ART 23

LEO LABORATORIES LTD v CROMPTON BV (ORSE WITCO BV) 2005 2 IR 225 2005/36/7495 2005 IESC 31

BIO-MEDICAL RESEARCH LTD T/A SLENDERTONE v DELATEX SA 2000 4 IR 307 2001 2 ILRM 51 2000/2/509

LEATHERTEX DIVISIONE SINTETICI SPA v BODETEX BVBA 1999 ECR I-6747 1999 2 AER (COMM) 769 1999 CLC 1983

MAINSCHIFFAHRTS GENOSSENSCHAFT EG (MSG) v LES GRAVIERES RHENANES SARL 1997 ECR I-911 1997 QB 731 1997 3 WLR 179 1997 AER (EC) 385

BRUSSELS CONVENTION 1968 ART 17

EEC REG 44/2001 ART 23(1)(A)

EEC REG 44/2001 ART 23(1)(C)

1 1. This appeal concerns Article 23 ("Prorogation of Jurisdiction") of the Brussels I Regulation ( Council Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). The issue is whether an agreement between the appellants (whom I will call "the plaintiffs") and the second named respondent (whom I will call "the second named defendant") confers exclusive jurisdiction on the courts of Italy. The appeal is taken from the judgment in the High Court delivered on 28 June 2006 by de Valera J, holding in favour of Italian jurisdiction.

2 2. The plaintiffs have a joinery business in Abbeydorney, Co Kerry. It is unnecessary for the purposes of this case to distinguish between the plaintiffs. I will refer to them throughout as if they were a single party. In late 2001, the plaintiffs wished to modernise and improve their business. They contacted a number of suppliers of woodworking machinery including the defendants.

3 3. The first named defendant is a company incorporated in the United Kingdom. The second named defendant is a company, associated with the first named defendant, and incorporated in Italy. It appears that the latter is the ultimate supplier of the equipment.

4 4. By an agreement made in December 2001 the plaintiffs agreed to buy a specialised woodcutting machine, described as a CNC router, from the first named defendant. On 21 December 2001 the plaintiffs signed a printed order for the machine to be supplied by the first named defendant. That form contained the following statement: "Sold subject to Masterwood Spa Rimini Terms and conditions of Sale." That agreement was not, however, made with the second-named defendant. It contained no clause providing for choice of jurisdiction. The plaintiffs paid a substantial deposit by way of cheque, which was, at the request of the first named defendant, made payable to the second named defendant.

5 5. Subsequent to the making of that agreement, difficulties arose with regard to the delivery date which had been agreed by the first named defendant. The second-named defendant would not agree to the original delivery date. Ultimately a new agreement came into existence. In the month of March 2002 the second-named defendant faxed an order form to the plaintiffs which was signed by and on behalf of the plaintiffs and returned. At the same time the plaintiffs (in fact the first-named plaintiff) signed a document headed: "General Conditions of Sale …" Those conditions included the clause which is the subject of the dispute and is as follows:

"For any controversy arising from the present contract or connected to the same, the Court of Rimini shall have sole jurisdiction."

6 6. The machinery was delivered in due course to the plaintiffs. The present action relates to complaints in respect of alleged defects in the goods. The plaintiffs claim to have suffered severe loss and damage to their business.

7 7. On 27 ^th June 2003 the plaintiffs issued the present proceedings against both defendants. The third defendant is joined as having provided finance to the plaintiffs in respect of the transaction. It is not a party to the appeal.

8 8. It is not clear from the statement of claim whether the plaintiffs allege that that contract is with one or other of the defendants or with both. In their written submissions, they state that they rely on the contract of 21 ^st December 2001 with the first named defendant. They also refer to that defendant as being the agent of the second-named defendant. For the purposes of the present judgment, it is sufficient to say that a contract is alleged to have been made with the second-named defendant. It is the terms of that contract, if it exists, which are relevant.

9 9. The second-named defendant entered an appearance expressed to be purely for the purpose of contesting jurisdiction and brought a notice of motion in the High Court seeking an order setting aside service upon it. It relies on the printed condition which assigns jurisdiction to "the Court of Rimini." It claims that by virtue of Article 23 of the Brussels Regulation, that court has exclusive jurisdiction.

10 10. It is not disputed by the plaintiffs that the documents, assuming them to be contract documents, of March 2002 were signed on their...