Deutsche Bank A.G. v Murtagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello.
• Judgment Date: 01 January 1995
• Neutral Citation: 1995 WJSC-HC 372
• Court: High Court
• Docket Number: [1994 No. 928S],928 S/1994
• Date: 01 January 1995

1995 WJSC-HC 372

THE HIGH COURT

928 S/1994

DEUTSCHE BANK v. MURTAGH

BETWEEN

DEUTSCHE BANK AKTIENGESELLSCHAFT

PLAINTIFF

AND

ANTHONY MURTAGH AND DAGMAR MURGAGH

DEFENDANTS

Citations:

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S3

BRUSSELS CONVENTION 1968 ART 2

BRUSSELS CONVENTION 1968 ART 52

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S13

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 SCHED 5 PART I

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S4

SCHLOSSER REPORT ON THE 1978 ACCESSION CONVENTION PARA 73

GOERTZ, STATE V MIN FOR JUSTICE 1948 IR 45

LEVENE V INLAND REVENUE COMMISSIONERS 1928 AC 217

INLAND REVENUE COMMISSIONERS V LYSAGHT 1928 AC 234

INCOME TAX ACT 1918

CHILDRENS ACT 1908

STOKE-ON-TRENT BOROUGH COUNCIL V CHESHIRE CO COUNCIL 1915 3 KB 699

BERKSHIRE CO COUNCIL V READING BOROUGH COUNCIL 1921 2 KB 787

MENTAL DEFICIENCY ACT 1913 UK

DERBY & CO LTD V WELDON (NO 3 & 4) 1989 2 WLR 412

Synopsis:

CONFLICT OF LAWS

High Court

Jurisdiction - Determination - Defendant - Domicil - Ascertainment - Statute - Special provisions - Whether defendant ordinarily resident in the State - (1994/928 - Costello J. - 16/12/94)

|Deutsche Bank A.G. v. Murtagh|

INJUNCTION

Interlocutory

Defendant - Assets - Preservation - Plaintiff - Claim - Liquidated damages - ~Mareva~ injunction sought to affect foreign assets - Jurisdiction of High Court disputed - Domicile - Whether defendant ordinarily resident in the State - Jurisdiction of Courts and Enforcenent of Judgments (European Communities) Act, 1988, ss. 3, 13; article 2 of 1st schedule; Part 1 of 5th schedule - (1994/928 - Costello J. - 16/12/94) - [1995] 2 I.R. 122 - [1995] 1 ILRM 381

|Deutsche Bank A.G. v. Murtagh|

WORDS AND PHRASES

"Ordinarily resident"

High Court - Jurisdiction - Defendant - Domicile - Special meaning - Statute - Interpretation - Test of defendant's residence in the State - (1994/928 - Costello J. - 16/12/94) - [1995] 2 I.R. 122

|Deutsche Bank A.G. v. Murtagh|

1 Mr. Justice Costello. Delivered the 16 December, 1994.

INTRODUCTION

2 The plaintiff company (a bank incorporated and carrying on business in Germany) has claimed against the defendants 1,000,000 DM (one million Deutschmarks) due, it is said, on guarantees in writing executed by each defendant on the 2nd April 1993, together with appropriate interest. The contract of guarantee was executed in Germany, it is subject to German law, it was to be performed in Germany and neither of the defendants are Irish citizens. The defendants entered an appearance to the plaintiffs Summary Summons on a "without prejudice" basis, asserting that the Irish courts have no jurisdiction to adjudicate on the plaintiffs claim. Having instituted the proceedings the plaintiff moved immediately for a Mareva injunction restraining the defendants from dealing with their assets in the jurisdiction and in particular, the property known as "Olde Court Castle" at Nenagh, County Tipperary in which they presently reside. The Motion was adjourned generally, the defendants having given certain undertakings to the court, pursuant to which affidavits were filed. This new motion to restrain dealing with extra-territorial assets was then brought. The parties have agreed that I should determine as a preliminary issue, for the purposes of this motion and the action itself, the issue of the court's jurisdiction to adjudicate on the claim. Should I decide in the defendants favour that will end the proceedings. Should I decide in the plaintiffs favour then I will consider the claim that the injunction should be extended to prohibit the dealing by the defendants with certain specified assets outside the jurisdiction.

THE JURISDICTION OF THE IRISH COURTS

3 The issue of jurisdiction depends primarily on a construction of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988and the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of the 27 September 1968. The 1968 Convention was given the force of law in this country by section 3 of the 1988 Act. Should I decide, as the plaintiffs asked me to decide, that the courts have jurisdiction if it can be established that the defendants are "ordinarily resident" in the State then the facts as deposed to on affidavit must be considered to see whether they are so resident.

4 Briefly, the defendants case is that the courts only have jurisdiction in these proceedings if it can be shown that the defendants have an Irish domicile (in accordance with well established common law concepts) as well as being ordinarily resident in the State. The plaintiffs case is that the test is an "ordinary-residence" one and that on the evidence ordinary residence has been established and so the court has jurisdiction.

(a) The 1988 Act and the 1968 Convention

5 (1) Article 2 of the Convention provides that persons domiciled in a contracting State shall, whatever their nationality, be sued in the courts of that State.

6 (2) "Domicile" is not defined but Article 52 provides that in order to determine whether a party is domiciled in the contracting State whose courts are seized with the matter "the court shall apply its internal law".

7 (3) The 1988 Act defined "domicile" for the purposes of the Convention. It provided in section 13 that:-

8 Subject to Article 52, Part 1 of the 5th Schedule to this Act shall apply in relation to the text in the English language of the 1968 Convention ... in order to determine for the purposes of the 1968 Convention and this Act whether an individual is domiciled in the State ..."

9 And Part 1 of the 5th Schedule, headed "domicile", provides that:-

"An individual is domiciled in the State, or in a State, other than a contracting State if, but only if, he is ordinarily resident in the State or in that other State".

10 The plaintiffs argue that the Irish courts obtain jurisdiction under the Convention when it can be shown that a defendant is "ordinarily resident" in the State. In support of this construction the plaintiffs called in aid the "Schlosser Report" (which, by section 4 of the 1988 Act, is admissible as an aid in construing the Convention) which specifically referred to the need to change the common law concept of "domicile" both in this country and in the United Kingdom and which recorded that it was a condition of the accession of this country to the Convention that implementing legislation would provide for a concept of domicile which would depart from traditional concepts (that is, those of...