Gannon v British and Irish Steamship Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1991 No. 3310P; S.C. No. 261 of 1992]
• Court: Supreme Court

High Court

Supreme Court

[1991 No. 3310P; S.C. No. 261 of 1992]

Gannon v. British and Irish Steampacket Co. Ltd.

Valerie Gannon

Plaintiff

and

British and Irish Steampacket Company Limited, Landliner Travel Merseyside Limited and Edenderry Transport Limited, Defendants

Case mentioned in this report:—

Athanasios Kalfelis v. Bankhaus Schröder, Munchmeyer, Hengst & Co. and others Case 189/87 [1988] E.C.R. 5565.

Practice - Joinder - Defendants domiciled abroad - Contract concluded in Ireland - Package holiday - Road traffic accident in England involving parties domiciled in England - Action in contract against defendant domiciled in Ireland - Joinder of action in tort against defendants domiciled in England - Whether actions connected so as to confer jurisdiction upon the Irish courts over the defendants domiciled in England pursuant to art. 6 (1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968 - Whether action against party domiciled in Ireland brought solely in order to oust jurisdiction of English courts - Whether joinder abuse of process - Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968, arts. 2, 5 and 6 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3), s. 3.

European Communities - Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968 - Action in contract against defendant domiciled in Ireland - Joinder of action in tort against defendants domiciled in England - Whether actions connected so as to confer jurisdiction upon the Irish courts over the defendants domiciled in England pursuant to art. 6 (1) of the Convention - Whether action against party domiciled in Ireland brought solely in order to oust jurisdiction of English courts - Whether joinder abuse of process - Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968, arts. 2, 5 and 6 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3), s. 3.

Motion on notice.

The facts have been summarised in the headnote and are fully set out in the judgments, infra.

By plenary summons dated the 4th March, 1991, the plaintiff commenced proceedings against the defendants claiming damages in respect of personal injuries alleged to have been sustained by reason of the negligence, breach of duty and breach of contract of the defendants. The plenary summons contained an indorsement for the purposes of O. 4, r. 1 (a) and O. 5 of the Rules of the Superior Courts in the following terms:—

"1. The court has power under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, to hear and determine the plaintiff's claim against the second and third defendants herein, and the court should assume jurisdiction to hear the said claim under the provisions of art. 6 (1) of the 1968 Convention.

2. No proceedings between the parties concerning the same cause of action is pending between the parties in another contracting state."

On the 14th June, 1991, an appearance was entered by the solicitors for the second and third defendants which was expressed to be "without prejudice and for the purposes of contesting the jurisdiction". By notice of motion dated the 18th July, 1991, the second and third defendants sought an order pursuant to art. 18 of the Convention setting aside the service upon the second and third defendants of the notice of summons.

In Kalfelis v. Bankhaus Schröder Case 189/87 [1988] E.C.R. 5565 (referred to post) the following questions were referred to the Court of Justice of the European Community under Article 177 of the Treaty of Rome by the Constitutional Court of the Federal Republic of Germany:—

"(1) (a) Must Article 6 (1) of the EEC Convention be interpreted as meaning that there must be a connection between the actions against the various defendants?

(b) If question (a) must be answered in the affirmative, does the necessary connection between the actions against the various defendants exist if the actions are essentially the same in fact and law (einfache Streitgenossenschaft), or must a connection be assumed to exist only if it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings (for example, in cases of 'notwendinge Streitgenossenschaft' (compulsory joinder))?

(2) (a) Must the term 'tort' in Article 5 (3) of the EEC Convention be construed independently of the Convention or must it be construed according to the law applicable in the individual case (lex causae), which is determined by the private international law of the court applied to?

(b) Does Article 5 (3) of the EEC Convention confer, in respect of an action based on claims in tort and contract and for unjust enrichment, accessory jurisdiction on account of factual connection even in respect of the claims not based on tort?"

The motion came on for hearing before the High Court (Denham J.) on the 19th July, 1992.

The second and third defendants appealed to the Supreme Court from the order of the High Court by notice of appeal dated the 29th July, 1992. The appeal was heard by the Supreme Court (Finlay C.J., O'Flaherty and Egan JJ.) on the 30th October, 1992.

Article 2 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on the 27th September, 1968, as enacted by s. 3 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, provides:—

"Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State."

Article 5 of the Convention provides, inter alia:—

"A person domiciled in a Contracting State may, in another Contracting State, be sued:—

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

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred."

Article 6 of the Convention provides, inter alia:—

"A person domiciled in a Contracting State may also be sued:—

1. where he is one of a number of defendants, in the courts for the place where any one of them is domiciled;

2. as a third party in . . . any . . . third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case."

Article 18 of the Convention provides:—

"Apart from jurisdiction derived from other provisions of this Convention, a court of a Contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 16."

The plaintiff entered into a contract in Dublin with the first defendant, a shipping company, for a package trip to Liverpool. Pursuant to this agreement the plaintiff was to travel by boat from Dublin to Holyhead, and by coach from Holyhead to Liverpool. The second defendant was the owner and operator of the coach which was to convey the plaintiff from Holyhead to Liverpool. In the course of this journey the coach encountered a lorry owned by the third defendant, which was attempting a U-turn in the road, and a collision occurred as a result of which the plaintiff sustained personal injuries. Both the second and third defendants were companies domiciled in England.

The plaintiff instituted proceedings in the High Court against the defendants. The plenary summons contained an indorsement pursuant to O. 4, r. 1 (a) and O. 5 of the Rules of the Superior Courts, 1986 (as inserted by S.I. No. 14 of 1989) to the effect that the court had power by virtue of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, and art. 6 (1) of the Convention to hear and determine the plaintiff's claim against the second and third defendants. The second and third defendants applied by way of motion for an order pursuant to art. 18 of the Convention setting aside the service upon them of the notice of summons in the action.

On behalf of the second and third defendants it was argued, inter alia, that since neither of the vehicles which had collided were owned by or under the control of the first defendant, the first defendant was not liable in respect of the accident, and had only been joined in the proceedings in order to give jurisdiction over the second and third defendants to the Irish courts pursuant to art. 6 (1) of the Convention. It was submitted that the actions against the first defendant on the one hand, and the second and third defendants on the other, were not so connected as to make it appropriate for the courts of Ireland to assume jurisdiction over the latter defendants pursuant to art. 6 (1) of the Convention. It was further submitted that where an action was brought pursuant to art. 5 (3) of the Convention, the court which had jurisdiction over the action did not have jurisdiction over any part of the action which was not grounded in tort, and that by analogy, since the plaintiff's claim against the first defendant was in contract, the court should refuse to entertain her claim in tort against the second and third defendants.

Counsel on behalf of the plaintiff submitted that a connection existed between the actions brought against the defendants insofar as the first defendant had a potential liability in respect of the selection and operation of the coach in which she had been a passenger, and the coach caused or contributed to the accident by reason of negligence in relation to its operation, management, driving or...