Grehan v Medical Incorporated and Valley Pines Associates

JurisdictionIreland
CourtSupreme Court
JudgeWALSH J.
Judgment Date13 March 1986
Neutral Citation1986 WJSC-SC 755
Docket Number320/85,[1983 No. 7847P]
Date13 March 1986
GREHAN v. MEDICAL INCORPORATED & VALLEY PINES

BETWEEN:

PATRICK GREHAN
Plaintiff
v.
MEDICAL INCORPORATED AND VALLEY PINESASSOCIATES
Defendants

1986 WJSC-SC 755

320/85

THE SUPREME COURT

Synopsis:

WORDS AND PHRASES

"Committed"

Tort - Locus - Whether committed within the jurisdiction - Service of notice of summons outside jurisdiction - Action founded on damage alleged to have occurred in Ireland as result of defective goods made and sold in foreign country - ~See~ Practice, summons - (320/85 - Supreme Court - 13/3/86) - - [1986] IR 528 - [1986] ILRM 627

|Grehan v. Medical Incorporated|

PRACTICE

Summons

Service - Service outside the jurisdiction - Discretion of court conferred by rules of court - Order 11, r.1(f), enabling court to permit service outside jurisdiction where action founded on tort "committed within the jurisdiction" - Medical appliance sold by defendant in U.S.A. - Appliance inserted in plaintiff in Ireland - Damage caused to plaintiff in Ireland - Allegation that damage caused by defect in appliance - Order of High Court giving plaintiff liberty to serve notice of action on defendant outside jurisdiction - Appeal by defendant dismissed - Held that sufficient elements of alleged tort had occurred in Ireland to bring plaintiff's action within the terms of order 11, r.1(f), of Rules of the Superior Courts, 1962 - (320/85 - Supreme Court - 13/3/86) - [1986] IR 528 - [1986] ILRM 627

|Grehan v. Medical Incorporated|

Citations:

DUNLOP RUBBER CO V DUNLOP 1921 1 AC 367

DUNLOP V DUNLOP RUBBER CO 1921 IR 273

ABBOTT-SMITH V GOV UNIV OF TORONTO 45 DLR 2d 672

ANDERSON V NOBELS EXPLOSIVE CO 12 OLR 644

BRENNAN V LOCKYER & ORS 1932 IR 100

BUTTEGEIG V UNIVERSAL TERMINAL 1972 VR 626

CANNING V DONEGAL CO COUNCIL 1961 IR 7

CASTREE V SQUIBB LTD 1980 1 WLR 1248

COMMON LAW PROCEDURE ACT OF NEW SOUTH WALES S18

COMMON LAW PROCEDURE ACT OF NEW SOUTH WALES S4

CORDOVA LAND CO LTD V VICTOR BROS INC 1966 1 WLR 793

COURTS OF JUSTICE ACT 1936 S27

DISTILLERS CO (BIOCHEMICALS) LTD V THOMPSON 1971 AC 458

DONOGHUE V STEVENSON 1932 AC 562

DUNLOP V DUNLOP RUBBER CO 1920 IR 280

EUROPEAN CONVENTION JURISDICTION ENFORCEMENT OF JUDGMENTS ART.5(3)

EUROPEAN CONVENTION JURISDICTION ENFORCEMENT OF JUDGMENTS ART.2

FERMANAGH CO COUNCIL V FARRENDON 1923 2 IR 180

HANDELSKWEKHERIJ V MINES DE POTASSE D'ALSACE 1976 ECR 1735

JOYNT V M'CRUM 1899 IR 217

KROCH V ROSSELL 1973 1 AER 725

LOCUS OF A TORT 96 ILTR 93

M'CREA V KNIGHT 1896 2 IR 619

M'CULLAGH V THE IRISH FREE STATE 57 ILTR 171

MALICIOUS INJURIES (IRL) ACT, 1853 S1

MONRO LTD V AMERICAN CYANAMID & CHEMICAL CORPO 1944 KB 432, 1944 1 AER 386

MORAN V PYLE NATIONAL (CANADA) LTD 1974 2 WWR 586

MORAN V PYLE NATIONAL (CANADA) LTD 43 DLR 3d 249

MULTINATIONAL GAS (PETROL) V MULTINATIONAL GAS (SERVICES) 1983 CH 258

O'DALY V GULF OIL 1983 ILRM 163

PHILLIPS V EYRE LR 6 QB 1

RSC 1905 O.11

RSC 1926 O.6

RSC O. r1(f)

RUSSELL V LE BERT 1896 IR 334

SHIPSEY V BRITISH & SOUTH AMERICAN STEAM NAVIGATION CO 1936 IR 65

WILLS V SECRETARY OF STATE FOR NORTHERN IRELAND 1981 NIJB

1

JUDGMENT delivered on the 13th day of March 1986by WALSH J. [Nem Diss]

2

On the 11th November 1983 the plaintiff instituted proceedings for negligence against the first-named defendants. The plaintiff claimed that a heart value which was inserted in his heart by open heart surgery in a hospital in Dublin was defective and that he suffered injury because of that. The defendants, while denying negligence, and putting the plaintiff on proof of all the matters averred in his statement of claim, said that the heart valve in question had been manufactured by the second-named defendants, who had not then been joined in the action. The plaintiff then applied to the High Court forliberty to join the second-named defendants as a defendant in the action and to serve notice of the proceedings outside the jurisdiction on the said second-named defendants. The order was made pursuant to O. 11, r. 1(f) of the Rules of the Superior Courts. The said second-named defendants manufactured the heart valve in San Diego in California and supplied it to the first-named defendants in the United States ofAmerica.

3

The application to join the second-named defendants was made ex parte. Subsequently the said second-named defendants moved by notice of motion in the High Court to have the order joining them as defendants set aside. In support of that application they argued in the High Court that they could not be sued within this jurisdiction. For the plaintiff it was argued that while the defendants did manufacture the said article in the United State of America, they did so knowing that it would be distributed on a world-wide basis and that the distribution of the article in this country was done through the medium of the first-named defendants. Mr. Justice Lynch refused the application expressing the view that to do justice in the action it should be tried as one action and not to use his own words "piecemeal here andelsewhere."

4

Against the dismissal of that application the second-named defendants have appealed to this Court on the grounds that the High Court Judge was wrong in law. It was also claimed that the High Court Judge was wrong in holding that the defective valve had been manufactured by the second-named defendants. It was however admitted that at least a component part of the said valve was manufactured by the said second-named defendants and was one of a number of such components sold and delivered by the second-named defendants to the first-named defendants in the United States. It is not necessary in this appeal to decide the question of liability but it is sufficient to deal with the case on the basis of the claim made and with the fact that the second-named defendants were involved in the manufacture of at least a part of the valve, which was alleged to have been defective. In brief this appeal has turned upon the question of whether or not this is a proper case in which the High Court ought to have exercised its discretion to order service of notice of the proceedings outside the jurisdiction on the second-named defendants and to join them asdefendants.

5

O. 11 of the Rules of the Superior Courts enumerates the circumstance in which service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court.This arises in situations which the defendant is not present within the jurisdiction but in which the case is so closely connected with Ireland or with Irish law that there is a jurisdiction for it being tried within this jurisdiction. O. 11 enumerates the circumstances in which jurisdiction may be assumed. This form of procedure was first provided for in the Common Law Procedure, 1852 and the cases in which it could be exercised were specified in the Rules of court. This was a modification of the common law position whereby courts exercised jurisdiction only where the defendant was served with the process within the jurisdiction or submitted to the jurisdiction. It was clear that such a rigid system would not always work justice for the plaintiff in such cases.

6

It is to be noted that the matter is one entirely at the discretion of the Court. The jurisdiction to allow service out of the jurisdiction is a discretionary, and not a mandatory, one. O. 11 refers to cases in which service out of the jurisdiction "may be allowed by the Court." See M'Crea v. Knight [1896] 2 I.R. 619 per Fitzgibbon L.J. at p. 625 and Joynt v. M'Crum [1899] 1 I.R. 217 per Chatterton V.C. at p. 224. In the case of Russell v. LeBert [1896] 1 I.R. 334, Porter M.R. stated at p. 339 that "it is desirable that the rules in reference to serviceout of the jurisdiction should be construed widely, and so as to make them applicable to a case like the present, clearly within the spirit of the rules, where there is a question of substance to be determined, which really ought to be, on analogy at least to the rest of the rules, submitted to the Irish Courts, and where no reason to the contrary, founded on convenience, has even been alleged." In Shipsey v.British a American Steam Navigation Company [1936] I.R. 65Kennedy C.J. said at p. 83:-

"I think that it is very important that, in a matter of the international comity of Courts, the High Court, when making an order giving leave for service out of the jurisdiction, should specifically mention in the order the particular class of action within which the Court decides the intended action to fall, so as to confine jurisdiction to allow service out of the jurisdiction within the expressed terms either of Order XI of the Rules of 1905, or of Order VI of the Rules of1926."

7

In Brennan v. Lockyer and Others [1932] I.R. at p. 100 Kennedy C.J. points out at p. 107 that it is absolutely necessary when seeking an order for service out of the jurisdiction to show that the applicant must bring himself within one or other of the enumerated cases set out in the relevant rule, a point reiterated by Fitzgibbon J.in Shipsey v. British and South American Steem NavigationCompany, (already referred to) at p. 84 and at p. 88.

8

In the present case the order is sought under O. 11, r. 1(f) of the Rules of the Superior Courts which permits service outside the jurisdiction where "the action is founded on a tort committed within the jurisdiction". The question which arise therefore are whether the negligence alleged against the second-named defendants in the present case is a "tort committed within the jurisdiction" and what approach the Court should adopt in arriving at its decision.

9

Counsel on behalf of the appellants, relying upon the judgment of Goddard L.J. in Monro Limited v. American Cyanamid and ChemicalCorporation [1944] K.B. 432, submitted that the test is where the wrongful act was committed and not where the damage was incurred. On behalf of the respondent it was submitted, relying on the judgment of Ackner L.J. in...

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