Grosso v Lamsouguer and Another

JurisdictionIreland
JudgeMr Justice Charleton
Judgment Date14 June 2012
Neutral Citation[2012] IEHC 230
Judgment citation (vLex)[2012] 6 JIC 1402
CourtHigh Court
Date14 June 2012

[2012] IEHC 230

The High Court

Record number 309S/2012
Grosso v Lamsouguer & AE Photonics GmbH
Commercial

Between

Orazio Grosso
plaintiff

and

Marco Samir Lamsouguer and AE Photonics GmbH
defendants

EEC REG 44/2001 ART 23

EEC REG 44/2001 ART 2(1)

EEC REG 44/2001 ART 5

EEC REG 44/2001 ART 6

ALLIED IRISH BANK PLC v HIGGINS & ORS UNREP 3.6.2010 2010/2/422 2010 IEHC 219

SAUNDERS v ANGLIA BUILDING SOCIETY 1971 AC 1004 1970 3 WLR 1078 1970 3 AER 961

TED CASTLE MCCORMACK & CO LTD v MCCRYSTAL UNREP MORRIS 15.3.1999 1999/24/7774

BARCLAYS BANK PLC v SCHWARTZ 1995 CLY 2492

LEO LABORATORIES LTD v CROMPTON BV (ORSE WITCO BV) 2005 2 IR 225 2005/36/7495 2005 IESC 31

LEATHERTEX DIVISIONE SINTETICI SPA v BODETEX BVBA 1999 2 AER (COMM) 769 1999 ECR I-6747 1999 CLC 1983 2000 ILPR 273

ESTASIS SALOTTI DI COLZANI AIMO E GIANMARIO COLZANI v RUWA POLSTEREIMASCHINEN GMBH 1976 ECR 1831 1977 1 CMLR 345

DAIRYGOLD FOOD INGREDIENTS LTD v TEODORO GARCIA SA UNREP MACMENAMIN 15.4.2011 (EX TEMPORE)

UBS AG & ANOR v HSH NORDBANK AG 2010 1 AER (COMM) 727 2009 2 LLOYDS 272 2009 1 CLC 934 2009 EWCA CIV 585

BOLS DISTILLERIES BV (T/A BOLS ROYAL DISTILLERIES) & ANOR v SUPERIOR YACHT SERVICES LTD 2007 1 WLR 12 2007 1 AER (COMM) 461 2007 1 LLOYDS 683 2007 1 CLC 308 2007 ILPR 46

O'CONNOR & DAN O'CONNOR JOINERY LTD v MASTERWOOD (UK) LTD & ORS UNREP SUPREME 1.7.2009 2009/44/11073 2009 IESC 49

CONTRACT LAW

Jurisdiction

Share transfer agreement - Jurisdiction clause - Brussels I Regulation - Whether parties bound by clause regarding jurisdiction - Whether vitiating factors undermining consent to jurisdiction - O'Connor v Masterwood (UK) Ltd [2009] IESC 49 (Unrep, SC, 1/7/2009) considered - Council Regulation (EC) 44/2001, art 23 - Motion dismissed (2012/309S - Charleton J - 14/6/2012) [2012] IEHC 230

Grosso v Lamsouguer

Facts: The plaintiff, an Italian lawyer, had acted as a legal advisor to the two defendants, and also held shares in common with the first defendant in the second defendant company as well as an Italian entity. Following a dispute as the plaintiff"s remuneration, a share transfer agreement was drafted by the plaintiff transferring his shares in the Italian entity to the second defendant. The agreement specified that Italian law was to apply, and the Irish courts were to have jurisdiction. The defendants sought to challenge the jurisdiction of the Irish courts to hear the plaintiff"s action for damages in relation to the share transfer agreement.

Held by Charleton J. that Article 23 of Council Regulation (EC) No 44/2001 governed the matter, and the issue to be determined was whether the parties had committed to a choice of jurisdiction under that article. Having considered the relevant domestic and ECJ case law, it was clear the defendants had consented to the choice of jurisdiction, and the court would give effect to this choice. O"Connor & Another v Masterwood (UK) Limited & Others [2009] IESC 49 followed.

1

Mr Justice Charleton delivered on the 14th day of June 2012

2

The defendants challenge the jurisdiction of the Irish courts to dispose of an action for damages based upon a share transfer agreement signed in Italy in Italian dated 5 November 2010. The agreement specifies on its face that the courts of Ireland are to have jurisdiction and to apply Italian law.

Law as to choice of jurisdiction
3

The matter is governed solely by Article 23 of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation"). Under the heading of "Prorogation of Jurisdiction" this provides:

4

1. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

5

a a. in writing or evidenced in writing; or

6

b b. in a form which accords with practices which the parties have established between themselves; or

7

c c. in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

8

For the sake of completeness, brief reference to a number of other provisions of the Brussels I Regulation is appropriate. Article 2(1) provides the general rule that, in principle and subject to the Regulation, domicile shall dictate jurisdiction:

9

Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.

10

Article 5, which is under the section headed "Special Jurisdiction", deals with the question of jurisdiction in particular situations such as contract and tort and provides the following:

11

A person domiciled in a Member State may, in another Member State, be sued:

12

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

13

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

14

· - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

15

· - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,

16

(c) if subparagraph (b) does not apply then subparagraph (a) applies;

17

2. in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties;

18

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

19

4. as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

20

5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;

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6. as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled;

22

7. as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question:

23

(a) has been arrested to secure such payment, or

24

(b) could have been so arrested, but bail or other security has been given;

25

provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

26

Finally, of note is Article 6 which describes situations in which a defendant may be sued in another Member State, for example, where they are one of a number of defendants or a third party in an action taken in a different Member State. However, these provisions are subject to the terms of Article 23, to which reference has been made, and on which the key issues in the present dispute turn.

27

While contract doctrines such as unilateral mistake, mutual mistake or non est factum may be of some assistance in approaching an issue as to agreement on jurisdiction, the sole issue is whether a consensus has been reached between the parties which ousts the usual rule under the Brussels I Regulation that the domicile of the defendant generally determines jurisdiction in such matters. The non est factum rule provides that a defence may be available to a party who pleads that an agreement signed by that party is not binding where he proves that there is a radical difference between what that party signed and what he thought he was signing in terms of mistaking the general character of the agreement and where that party took all reasonable precautions in the...

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1 firm's commentaries
  • Choice Of Jurisdiction Confirmed
    • Ireland
    • Mondaq Ireland
    • 1 August 2012
    ...certainty envisaged by Article 23, where a choice as to jurisdiction is made, the parties will be held to that agreement. Footnotes (1) [2012] IEHC 230. (2) For example, Leo Laboratories Ltd v Crompton BV [2005] 2 IR 225 and Case-C 420/97, Leathertex v Bodetex [1999] ECR (3) [2009] IESC 49.......

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