Goshawk Dedicated Ltd & Ors -v- Life Receivables Ireland Ltd, [2008] IEHC 90 (2008)

Docket Number:2007 6588 P
Party Name:Goshawk Dedicated Ltd & Ors, Life Receivables Ireland Ltd
Judge:Clarke J.





JUDGMENT of Mr. Justice Clarke delivered on the 27th day of February, 2008

1. Introduction

1.1 Amongst the many areas of commercial life and, in particular, commercial litigation which have come to be the subject of harmonisation measures on the part of the EU is the area of recognition of judgments of courts of competent jurisdiction of other Member States. It was obvious that the orderly establishment of a single market would require that there be a significant degree of certainty concerning questions such as the appropriate jurisdiction in which litigation should be conducted and the affording of appropriate recognition to the results of such litigation.

1.2 The first major step in that direction came about when the Brussels Convention was signed on the 27th September, 1968 and came into effect on the 1st February, 1973. The Brussels Convention was, of course, replaced by the so called Brussels Regulation (Regulation 44/2001 EC) made on the 22nd December, 2000, which came into force on the 1st March, 2002.

1.3 The issue which arises at this stage between the parties to this case concerns the proper interpretation of the Brussels Regulation and its application to the circumstances which have arisen. The issue also involves a consideration of the traditional common law position concerning jurisdiction and in particular the circumstances where, as a matter of common law, the courts of one jurisdiction might, in effect, decline to deal with litigation on the basis that an alternative jurisdiction might be considered to be a more appropriate venue for the resolution of the disputes which had arisen (the doctrine of forum non conveniens). There can be little doubt but that that traditional common law jurisdiction has, at a minimum, been substantially eroded by the provisions of the Brussels Convention and the Brussels Regulation. In reality the issue which arises in this case is as to just how far that process has gone.

1.4 The defendants ("Life Receivables") maintain that it would be appropriate under the common law jurisdiction for this Court to decline to deal with this litigation by virtue of the existence of earlier proceedings in Georgia in the United States relating to the same subject matter in which Life Receivables are plaintiffs and other parties (including the plaintiffs in these proceedings ("Goshawk and Carvell") are defendants. If neither the Brussels Convention or the Brussels Regulation existed, then it would undoubtedly be necessary to consider, in accordance with established common law rules, whether it was more appropriate that these proceedings be conducted in the United States rather than Ireland. However, the primary submission which Goshawk and Carvell make is to the effect that the Brussels Regulation removes the Courts discretion under common law and that, in accordance with the Brussels Convention properly construed, the courts of Ireland are required to deal with this case. There are a number of subsidiary issues which it will be necessary to advert to in due course. It is appropriate to start by setting out very briefly the factual context in which these issues arise.

2. The Facts

2.1 Life Receivables is incorporated in Ireland and has its principle place of business in Ireland. Goshawk and Cavell are English incorporated companies which have their principal places of business in London. In June 2005, Life Receivables purchased a partnership interest in a Delaware partnership known as Life Receivables II LLP in which Life Receivables and Life Receivables Holdings are the only partners but in which Life Receivables would appear to be the only partner with a financial stake. That partnership is, in turn, a beneficiary of Life Receivables Trust, whose commercial value derives from trust property, being life insurance policies purchased in the early years of this decade together with a contingent cost insurance issued by Goshawk in respect of those policies. Life Receivables alleges that it was induced into buying into the partnership as a result of misrepresentation.

2.2 Proceedings have been commenced in the United States District Court for the Northern District of Georgia by Life Receivables against Goshawk and Cavell, and a number of additional defendants who were involved in the series of transactions which were at the heart of the disputes between the parties.

2.3 There is no doubt but that those proceedings are first in time. Thereafter, Goshawk and Cavell have commenced these Irish proceedings which seek declarations that Goshawk and Cavell did not make misrepresentation together with other similar or consequential reliefs. There is no doubt but that the Irish proceedings are a mirror image of the Georgia proceedings save that, of course, none of the additional parties who are co-defendants with Goshawk and Cavell in the Georgia proceedings are parties to the Irish proceedings.

2.4 Against that brief factual background it is appropriate next to turn to those aspects of the legal issues which are not in dispute between the parties.

3. The Undisputed Law

3.1 The starting point is, of course, that Life Receivables is domiciled in Ireland and is, therefore, prima facie to be sued in the courts of Ireland by virtue of Article 2 of the Brussels Regulation.

3.2 That much is not disputed by Life Receivables. However, it is said that the common law doctrine of lis alibi pendens remains part of the law of Ireland in this area, notwithstanding the provisions of the Brussels Convention. On that basis it is said that the provisions of the Brussels Convention do not prevent this Court retaining a discretion to stay these proceedings pending a decision by the courts in Georgia.

3.3 While the continued existence of that discretion is a matter of significant dispute between the parties, the areas of dispute on the law were, in truth, narrowed in the course of the exchange of written submissions and the helpful oral submissions made on both sides. It is appropriate to set out the common ground before going on to consider the issues which remain in dispute.

3.4 In order to understand the common ground it is important to note that in Owusu v Jackson (Case C281/02 [2005] E.C.R. I - 138), the European Court of Justice ("ECJ") had to consider whether the common law doctrine of forum non conveniens, long recognised in common law countries, continued in existence notwithstanding the provisions of the Brussels Regulation. Owusu was a case involving a person who was injured while on holiday in Jamaica and where, it was said, Jamaica would be a much more convenient forum for the conduct of any litigation having regard to the availability of witnesses and the like. The defendant travel agent sought to have the proceedings, which had been commenced against him in the United Kingdom on the basis of his domicile there, stayed to permit a trial of the issues in Jamaica. The Court of Justice ruled that:-"The Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factor to any other Contracting State."3.5 It is important to note that the express terms of both the Brussels Convention and the Brussels Regulation deal, in the main, with questions concerning competing contentions as to which Contracting or Member State should deal with any particular piece of litigation governed by the terms of the Convention. The terms do not, expressly, deal with situations where the possible alternative jurisdiction is that of a non Member State. There are, of course, provisions which are concerned with the recognition within Member States of decisions of Courts of non Member States.

3.6 Had factual circumstances such as those which arose in Owusu occurred in relation to a holidaymaker in another Member State, there would have been no doubt but that the provisions of the Convention itself would have clearly governed where those proceedings were to be determined. The complication with which the ECJ was concerned in Owusu stemmed from the fact that the competing jurisdiction in that case was that of a non Member State. The proposition which the ECJ very strongly rejected in the passage I have cited was that the presence of a non Member State jurisdiction (Jamaica) as an alternative to that of the Member State concerned, (in that case England), allowed for the continuance of the application of that Member State's ordinary rules of private international law (the doctrine of forum non conveniens) to the selection of the appropriate jurisdiction. The defendant was domiciled in England. Article 2 provided, therefore, for England to have jurisdiction. The fact that English private international law has a doctrine of forum non conveniens under which it might well have been that the Courts of Jamaica would have been regarded as more convenient, was held by the ECJ, not to permit a deviation from the mandated jurisdiction specified by Article 2.

3.7 However, the real issue between the parties to this application concerns the relevance and applicability of the decision of the ECJ in Owusu to the contention put forward on behalf of Life Receivables that this Court retains a discretion under the lis alibi pendens doctrine to stay these proceedings. In the written submissions filed there appeared to be a dispute between the parties as to whether the doctrine of lis alibi pendens was a stand alone aspect of the private international law of common law...

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