O'Connor v Commercial General and Marine Ltd

JurisdictionIreland
JudgeMr. Justice Morris
Judgment Date18 April 1996
Neutral Citation1996 WJSC-HC 2063
Docket NumberNo. 8652p/1995,[1995
CourtHigh Court
Date18 April 1996

1996 WJSC-HC 2063

THE HIGH COURT

No. 8652p/1995
O'CONNOR v. COMMERCIAL GENERAL & MARINE LTD

BETWEEN

MICHAEL O'CONNOR
PLAINTIFF

AND

COMMERCIAL GENERAL AND MARINE LIMITED AND OMNE RE S.A. TRADING AS OMNE GULF INSURANCE COMPANY
DEFENDANTS

Citations:

RSC O.12 r26

RSC O.11 r8

CONVENTION ON JURISDICTION & ENFORCEMENT OF JUDGMENTS IN CIVIL & COMMERCIAL MATTERS 1968

JAMES V DESPOTT (1884)

CHANCERY (AMDT) ACT 1851 15–16 VICT CH 86

DRUMMOND V DRUMMOND LR CH APP 32

JUDICATURE (IRL) ACT 1877

RULES OF THE SUPREME COURT (IRL) 1891 APPENDIX R O.11

RULES OF THE SUPREME COURT (IRL) 1891 APPENDIX R O.11 r2

COOKNEY V ANDERSON 1 DE G J & SM 365

SHORTT V IRELAND UNREP O'HANLON 30.3.95 1996/8/2385

RULES OF THE SUPREME COURT (IRL) 1891 O.11 r2

RULES OF THE SUPREME COURT (IRL) 1891 O.11 r7

RULES OF THE SUPREME COURT (IRL) 1891 FORM NO 7

Synopsis:

PRACTICE

Service

Summons - Service abroad - Method - Rules - Requirement - Defendant being foreign company - Express requirement that notice of the summons be served on defendant - Summons served on Belgian company abroad - Service set aside - Plaintiff's claim to indemnity under insurance policy - Defendant denied being the underwriter - Leave to add another defendant - Rules of the Superior Courts, 1986 (S.I. No. 15), orders 11, r. 8; 11A, rr. 1, 2; 12, r. 26 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3), s. 3 - (1995/8652 P - Morris J. - 18/4/96) - [1996] 1 I.R. 68 - [1996] 2 ILRM 291

|O'Connor v. Commercial General & Marine Ltd.|

1

Judgment of Mr. Justice Morris delivered the 18th day of April 1996

2

This matter comes before the Court on the second named Defendant's Notice of Motion seeking two reliefs:-

3

(a) An Order pursuant to Order 12, Rule 26 of the Rules of the Superior Courts setting aside service upon it of the Plenary Summons herein on the grounds that the second named Defendant, being a Belgian national, ought in accordance with Order 11, Rule 8 of the Rules of the Superior Courts, to have been served with notice of the Plenary Summons rather than the summons itself.

4

(b) It seeks an Order setting aside the service of the summons on the grounds that the Court does not have jurisdiction pursuant to the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 1968 to hear and determine the Plaintiff's claim against the second named Defendant.

5

It is necessary to set out in short form the circumstances in which this action arises.

6

The Plaintiff says that he is a fisherman and was the owner of a fishing vessel, the "Cornelius Ferdinand" (T67). He says that on the 18th April, 1995 he received from Commercial General and Marine Limited, the first named Defendants, a quotation for insurance cover for the vessel which he accepted and that on the 1st May, 1995 he received a letter enclosing a cover note for the vessel. He says that the vessel was lost at sea on the 5th May, 1995 and the present claim is brought to recover the monies which the Plaintiff says are due to him on foot of the said insurance policy.

7

The Plaintiff says that originally he was unaware of the involvement of the second named Defendants. However, on the 16th May, 1995 he received a letter from Shannon Surveys Limited in which they referred to the second named Defendants as being "the underwriters". In subsequent correspondence, the second named Defendants are identified as having an address in Avenue Louise, 499–1050 Brussels, Belgium. In later correspondence, the Solicitors acting for the second named Defendants informed the Plaintiff's Solicitor that the underwriters were "Omne Gulf Insurance Company" (otherwise "Omne Bahrain"). It is the second named Defendants" case that while it is an associate of Omne Bahrain, the two companies are distinct legal entities and that it, the second named Defendant, is not the insurer of the Plaintiff's vessel but that Omne Bahrain is.

8

It is the second named Defendants" case that in the circumstances, this Court has no jurisdiction to entertain the present claim.

9

With regard to the first of the two reliefs sought:

10

The second named Defendants are a limited liability company incorporated under the laws of Belgium having its place of business at Avenue Louise, 499–1050 Brussels, Belgium.

11

The Plaintiff issued a High Court Plenary Summons against that company on the 3rd November, 1995 and, as appears from the certification, this summons was served on the 24th November, 1995 on that Defendant at its address in Brussels.

12

It is submitted on behalf of the second named Defendants that this service is bad in that Order 11, Rule 8 of the Superior Court Rules provides:

"Where the Defendant is not, or is not known or believed to be, a citizen of Ireland notice of the summons, and not the summons itself, shall be served upon him."

13

He accordingly applies under Rule 12, Order 26 for an Order that the service of the summons be set aside.

14

Counsel for the Plaintiff advances two arguments in opposition to this motion:-

15

1. It is submitted that notwithstanding Order 11, Rule 8 of the Superior Court Rules, service of the summons is permitted.

16

He bases this submission principally upon a decision of O'Brien J. in James & Ors -v- Anton Despott. Volume XIV QB, CP and EX divisions (1884) p71. He submits that since in that case, the judgment concludes with the statement "I shall therefore make an Order that the writ or notice of the...

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5 cases
  • Grovit v Jan Jansen
    • Ireland
    • High Court
    • 17 January 2018
    ...by the courts over the years. So, for example, where there was a failure to comply with this rule in O'Connor v. Commercial General [1996] 1 I.R. 68, Morris J. set aside service. More recently, in Castlelyons v. Eukor, Noonan J. observed that failure to comply with this requirement is a ba......
  • Smyth v SAS Sogimalp Tarentaise
    • Ireland
    • High Court
    • 25 July 2019
    ...settled law that service of a summons may be set aside if effected in breach of that rule; O'Connor v Commercial Glass and Marine Ltd [1996] 2 ILRM 291, Short v Ireland [1996] 2 IR 188 and Castlelyons Enterprises v Eukor Car-Carriers Inc [2016] IEHC 27 To that it might be added that I ra......
  • Murphy v GM PB PC Ltd and GH
    • Ireland
    • High Court
    • 4 June 1999
    ...PROCEEDS OF CRIME ACT 1996 S1(1) RSC O.124 r3 SAVVINOS, IN RE 1996 85 A CRIM R 343 RSC O.11 r8 O'CONNOR V COMMERCIAL GENERAL & MARINE LTD 1996 1 IR 68 COOKNEY V ANDERSON 1863 1 DE G J & S 365 BROWNLIE PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5ED 310 SHORT V IRELAND 1996 2 IR 188 TAHER MEATS ......
  • Castlelyons Enterprises Ltd v Eukor Car Carriers Inc.
    • Ireland
    • High Court
    • 3 October 2016
    ...based on the Recast Regulation are concerned. This is also a basis for setting aside the summons – see O'Connor v. Commercial General [1996] 1 I.R. 68. Application of the Brussels Recast Regulation 8 In the course of argument in this application, Counsel for the plaintiff conceded that the ......
  • Request a trial to view additional results

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