Goshawk Dedicated Ltd and Others v Life Receivables Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 February 2008
• Neutral Citation: [2008] IEHC 90
• Court: High Court
• Docket Number: [No.6588 P/2007]
• Date: 27 February 2008

Goshawk Dedicated Ltd & Ors v Life Receivables Ireland Ltd

[2008] IEHC 90

BETWEEN

GOSHAWK DEDICATED LIMITED AND KITE DEDICATED LIMITED (FORMERLY KNOWN AS GOSHAWK DEDICATED No. (2) LIMITED AND CAVELL MANAGEMENT SERVICES LIMITED AND CAVELL MANAGING AGENCY LIMITED

PLAINTIFFS

AND

LIFE RECEIVABLES IRELAND LIMITED

DEFENDANT

[2008] IEHC 90

[No.6588 P/2007]

THE HIGH COURT

COMMERCIAL

CONFLICT OF LAWS

Brussels Regulation

Jurisdiction - Proceedings earlier commenced in non member state - Interpretation of Brussels Regulation - Domicile of defendant - Common law jurisdiction - Lis alibi pendens - Forum non conveniens - Whether discretion to stay proceedings - Whether Brussels Regulation removed discretion under common law - Whether lis alibi pendens stand alone aspect of private international law or example of doctrine of forum non conveniens - Whether seeking of negative declaration amounted to abuse of process - Owusu v Jackson [2005] ECR 1-398, Spilliada Maritime Corporation v Cansulex [1987] AC 460, Harrods (Buenes Aires) Ltd [1992] Ch 72, Inter Metal Group Ltd v Worslade Trading Ltd [1998] 2 IR 1, Analog Devices v Zurich Insurance [2002] 2 ILRM 366, Joseph Murphy Structural Steel Engineers Ltd v Manitowac (UK) Ltd (Unrep, SC, 30/7/1985), Abidin Daver [1984] 1 AC 398, Erich Gazzer GmbH v MISAT [2003] ECR 1 - 14693, S & W Berisford Plc v New Hampshire Insurance Company [1990] 2 All ER 321, Arkwright Mutual Insurance Company v Bryanstown Insurance Company [1990] 2 All ER 335 and Group Josi Re-Insurance Co v VGSC (2002) ECR 1-05925 considered - Council Regulation (E.C.) No. 44/2001, article 2, 27 and 34 - Application dismissed (2007/6588P- Clarke J - 27/2/2008) [2008] IEHC 90

Goshawk Dedicated Ltd v Life Receivables Ireland Ltd

Facts: The defendants were incorporated in Ireland and had their principal place of business in Ireland. The plaintiffs principal place of business was in the UK. The issue arose as to the application of the Brussels Regulations to the dispute at issue and whether the proceedings ought to have been stayed. The defendants maintained that a common law jurisdiction should decline to deal with the proceedings on the basis of proceedings previously existing in the US between the same parties were involved resulting in lis pendens and the application of the provisions of Article 2 of the Brussels Regulation. The issue arose further as to the discretion retained by the courts as to the application of forum non conveniens and the application of a decision of the Court of Justice.

Held by Clarke J. that difficulties flowed from the propositions advanced to stay the proceedings. The Court did not have jurisdiction to stay the proceedings pending the result of the US proceedings. The Court would decline to so do. The Court retained a discretion to stay the proceedings as an abuse of process. Article 2 of the Brussels Regulation entailed that a court in Ireland still had jurisdiction, notwithstanding that non Member State proceedings might be in being.

Reporter: E.F.

OWUSU v JACKSON (CASE NO C-281/02 2005 ECR I-01383

BRUSSELS CONVENTION 1968 ART 2

SPILIADA MARITIME CORPORATION v CANSULEX LTD 1987 AC 460

HARRODS (BUENOS AIRES) LTD, RE 1992 CH 72

S & W BERISFORD PLC v NEW HAMPSHIRE INSURANCE CO 1990 2 AER 321

ARKWRIGHT MUTUAL INSURANCE CO v BRYANSTON INSURANCE CO LTD & ORS 1990 2 AER 335

SCHLOSSER REPORT ON THE CONVENTION ON THE ASSOCIATION OF THE KINGDOM OF DENMARK, IRELAND & THE UNITED KINGDOM OF GREAT BRITAIN & NORTHERN IRELAND TO THE CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGMENTS IN CIVIL & COMMERCIAL MATTERS & TO THE PROTOCOL ON IT'S INTERPRETATION BY THE COURT OF JUSTICE OJ C 59 5.3.1979

DICEY, MORRIS & COLLINS ON THE CONFLICT OF LAWS 14ED 2006

INTERMETAL GROUP LTD v WORSLADE TRADING LTD 1998 2 IR 1

ANALOG DEVICES BV v ZURICH INSURANCE CO & ANOR 2002 1 IR 272 2002 2 ILRM 366

JOSEPH MURPHY STRUCTURAL ENGINEERS v MANITOWAC UNREP SUPREME 30.7.1985 1985/5/1273 1988 DULJ 174

THE ABIDIN DAVER 1984 1 AC 398

EEC REG 44/2001 RECITAL 15

ERICH GASSER GMBH v MISAT SRL (CASE NO C-116/02) 2003 ECR I-14693

DALLOZ COMPETENCE JUDICIAIRE ET EFFETS DES JUGEMENTS DANS LE MARCHE COMMUN 1972 164-169

BRUSSELS CONVENTION 1968 ART 27

BRUSSELS CONVENTION 1968 ART 28

BRUSSELS CONVENTION 1968 ART 27.1

LAYTON EUROPEAN CIVIL PRACTICE 2ED 2004 789-790

STONE EU PRIVATE INTERNATIONAL LAW: HARMONIZATION OF LAWS 2006 179

BRIGGS FORUM NON CONVENIENS & THE BRUSSELS CONVENTION AGAIN 1991 107 LQR 180

EEC REG 44/2001 ART 34.4

GROUP JOSI REINSURANCE CO SA v UNIVERSAL GENERAL INSURANCE CO (UGIC) (CASE NO C-412/98) ECR 2000 I-05925

1. Introduction

2 2 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.

3 3 1.2 The first major step in that direction came about when the Brussels Convention was signed on the 27 ^th September, 1968 and came into effect on the 1 ^st February, 1973. The Brussels Convention was, of course, replaced by the so called Brussels Regulation ( Regulation 44/2001 EC) made on the 22 ^nd December, 2000, which came into force on the 1 ^st March, 2002.

4 4 1.3 The issue which arises at this stage between the parties to this ease 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.

5 5 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 2 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.

3 3 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.

4 4 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.

5 5 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

2 2 3.1The 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...