Doherty (A Minor) and Another (plaintiff) v North Western Health Board and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice William M. McKechnie |
| Judgment Date | 20 May 2010 |
| Neutral Citation | [2010] IEHC 283 |
| Court | High Court |
| Date | 20 May 2010 |
[2010] IEHC 283
THE HIGH COURT
Between:
EEC REG 44/2001 ART 22(2)
EEC REG 44/2001 ART 25
TREATY OF ROME ART 234
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267
HASSETT v SOUTH EASTERN HEALTH BOARD 2008 ECR I-7403 2009 ILPR 28
HENDERSON v HENDERSON 1843-60 AER REP 378 67 ER 313 1843 3 HARE 100
WHITE v SPENDLOVE 1942 IR 224
MEDICAL DEFENCE UNION LTD MEMORANDUM & ARTICLES OF ASSOCIATION ART 48
MEDICAL DEFENCE UNION LTD MEMORANDUM & ARTICLES OF ASSOCIATION ART 47
EEC REG 44/2001 ART 22(2)
SANDERS v VAN DER PUTTE 1977 ECR 2383 1978 1 CMLR 331
DANSOMMER A/S v GOTZ 2001 1 WLR 1069 2000 ECR I-393 2001 ILPR 28
LAND OBEROSTERREICH v CEZ AS 2006 ECR I-4557 2006 2 AER (COMM) 665 2006 ILPR 25
EEC REG 44/2001 ART 5
EEC REG 44/2001 ART 2(1)
EEC REG 44/2001 ART 6
JP MORGAN CHASE BANK NA & ANOR v BERLINRT VERKEHRSBETRIEBE (BVG) ANSTALT DES OFFENTLICHEN RECHTS 2010 QB 276 2010 2 WLR 690 2009 2 AER (COMM) 1167
EEC REG 44/2001 ART 16
NEWTHERAPEUTICS LTD v KATZ & ANOR 1991 CH 226 1990 3 WLR 1183 1991 2 AER 151 1990 BCC 362
GROUPO TORRAS SA & ANOR v AL-SABAH & ORS (NO 1) 1995 1 LLOYDS 374
GROUPO TORRAS SA & ANOR v AL-SABAH & ORS (NO 1) 1996 1 LLOYDS 7 1995 CLC 1025 1995 ILPR 667
COIN CONTROLS LTD v SUZO INTERNATIONAL (UK) LTD & ORS 1999 CH 33 1998 3 WLR 420 1997 3 AER 45 1997 FSR 660
COMPANIES ACT 1985 S14 (UK)
BARRY v MEDICAL DEFENCE UNION LTD UNREP SUPREME 16.6.2005 2005/3/588
PRACTICE & PROCEDURE
Jurisdiction
Conflict of laws - Exclusive jurisdiction - Third party proceedings - Challenge to jurisdiction - Test to be applied - Contract - Legitimate expectation - Abuse of discretion - Challenge to reasonableness of decision - Whether challenge to validity of decision of organ of company - Whether previous decision of European Court of Justice in same proceedings determinative of issue - Whether change in circumstances having occurred - Grupo Torras SA v Al-Sabah [1995] 1 Lloyd's Rep 374 and Hassett v South Eastern Health Board (Case C-372/07) [2008] ECR I-7403 approved; Dansommer AS v Gotz (Case C-8/98) [2000] ECR I-393, Land Oberösterreich v CEZ AS (Case C-343/04) [2006] 2 All ER (Comm) 665 and Sanders v van der Putte (Case 73/77) [1977] ECR 2383 considered; JP Morgan Chase Bank NA v Berliner Verkehrsbetriebe (BVG) [2009] EWHC 1627 (Comm), [2010] 1 QB 276 approved - Council Regulation (EC) No. 44/2001, articles 2, 5, 6, 22 and 25 - Application refused (200/8756P & 2002/16269P - McKechnie J - 20/5/2010) [2010] IEHC 283
Doherty (an infant) v North Western Health Board
Facts This judgment concerned a motion by the additional third parties to challenge the jurisdiction of the Irish courts to hear and determine the claims of the third parties as set out in the statement of claim. The application herein was based on Council Regulation (EC) No. 441/2001 'on the jurisdiction and the recognition of judgments in civil and commercial matters' and in particular Articles 22(2) and 25 therein. The substantive proceedings concerned medical negligence actions arising out of injuries sustained during the birth of the minor plaintiffs and judgement was obtained against the defendant in both cases. The defendant claimed to be indemnified by the respective third parties and the third parties in turn claimed indemnity from the additional third parties. However, indemnity in respect of these claims was ultimately withdrawn by the additional third parties and the third parties then challenged that refusal to indemnify. The challenge by the third parties was based on contract, misrepresentation, estoppel and alleged improper exercise of discretion by the additional third parties. The additional third parties previously appealed the High Court decision determining that the Irish Courts had jurisdiction to hear and determine the Third Party proceedings. The Supreme Court on appeal referred a question to the Court of Justice in Europe and the CoJ decided that point 2 of Article 22 of Regulation No. 44/2001 was to be interpreted as meaning that proceedings, such as those at issue herein, did not concern the validity of the decisions of the organs of a company within the meaning of that provision and consequently the challenge to the additional third parties refusal to indemnify was not covered by Article 22(2) as contended for by the additional third parties. In the proceedings herein before the court the additional third parties claimed that the Irish Courts did not have jurisdiction to determine the claim brought by the third parties and submitted that the claim involved a challenge to the validity of a decision of an organ of a company and thus Article 22(2) was applicable. The additional third parties also submitted that there had been a material change in the case since the CoJ decided the question as a third party statement of claim and further particulars were delivered since that date. The third parties contended that the decision of the CoJ was determinative of the issue; Article 22(2) did not apply to this case and this court was the court that had jurisdiction to decide their claims.
Held by McKechnie J. in refusing to grant the motion: That when considered in its totality the opinion of the CoJ did not support the submissions of the additional third parties. The opinion of the CoJ answered the questions posed and determined the issue on the claim as then presented. Accordingly the courts of this Member State had jurisdiction to hear and determine the third party claim. The CoJ decision was based on a proper understating of the third parties case as it was then particularised and there had not been such a change of circumstances/case so that the CoJ decision could now be interpreted so as to apply Article 22(2) in this case.
In the event that the court was in error and there had been a material change in the case as pleaded, the court nonetheless determined that the third parties in no way sought to impugn the power to refuse to provide indemnity and consequently the overall classification of the proceedings was such that they were not caught by Article 22(2).
Reporter: L.O'S.
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 20th day of May 2010
1. The within judgment arises out of an application brought, by way of Notice of Motion dated the 12 th October 2009, by the parties above-described as the Additional Third Parties, who are the Medical Defence Union Ltd. and MDU Services Ltd. (collectively cited as the "MDU"). The MDU has challenged the jurisdiction of this Court to hear and determine the claims of the Third Parties as set out in the Statement of Claim, delivered on 18 th June 2009. This challenge is based on Council Regulation (EC) No. 44/2001 'on the Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters' ("the 2001 Regulation"), and in particular on Articles 22(2) and 25 thereof. At the outset issue was taken with the inclusion of MDU Services Ltd. as a party, but I am satisfied that nothing turns on any distinction between it and MDU Ltd. for the purpose of this motion.
2. The MDU, which is a mutual defence organisation for medical practitioners, was incorporated as a non-profit-making, limited liability company in the United Kingdom under the laws of England and Wales. It has its registered office at 230 Blackfriars Road, London, England. In accordance with its rules and regulations, it is authorised to offer legal assistance and provide financial indemnity to its members if sued for legal wrongdoing. The Third Parties in the above actions are doctors, practising in this jurisdiction, who have been paid up members of this organisation for a period of 40 years; since around 1970 in fact. The Defendants, above-named, who have now been decreed by the Plaintiffs, claim to be indemnified by the respective Third Parties ("the doctors") in respect thereof. In turn the doctors claim a similar indemnity from the MDU.
3. The background to the present application can shortly be stated. The Plaintiffs in the above actions have both claimed for severe personal injuries, loss and damage, suffered and sustained by them by reason of negligence and breach of duty on the part of the Defendants. In essence these are birth injury cases, with the Health Boards representing the relevant hospitals, and with the Third Parties being the treating doctors. In both cases lawyers instructed by the MDU appeared on behalf of the doctors. Later however, the MDU withdrew indemnity cover from them. In the substantive actions, Nicole Hassett obtained judgment against the Defendant on the 18 th February 2005, and Cheryl Doherty did likewise on the 28 th January 2005, with indemnity ultimately being withdrawn by the MDU on the 28 th April 2005 and the 8 th December 2004 respectively.
4. On the 22 nd June 2005 the High Court made an Order giving the doctors liberty to issue and serve a Third Party Notice joining the MDU as an Additional Third Party. The MDU challenged the jurisdiction of the Irish Courts, by way of Motion, to hear and determine these Third Party proceedings. On the 5 th April 2006 the High Court dismissed the challenge. Subsequently, the MDU appealed this decision to the Supreme Court, which referred a question...
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Doherty (A Minor) v North Western Health Board
... [2010] IEHC 283, High Court [2000 No. 8756 P and 2002 No. 16269 Doherty (a minor) v. North Western Health Board Cheryl Doherty (a minor suing by her mother and next friend Sarah Doherty) Plaintiff and The North Western Health Board, Defendant, and Brian Davidson, Third Party, and The Medic......