Joan Donnelly v Vivier and Company Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 06 May 2022
• Neutral Citation: [2022] IECA 104
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2019/376

Between

Joan Donnelly

Appellant

and

Vivier and Company Limited

Respondent

[2022] IECA 104

Donnelly J.

Ní Raifeartaigh J.

Collins J.

Court of Appeal Record Number: 2019/376

THE COURT OF APPEAL

Defamation – Remuneration – Intimidation – Appellant seeking payment of monies due to her in respect of legal research services she performed for the respondent – Whether the appellant’s defamation claims fell within Order 11(1)(f) of the Rules of the Superior Courts

Facts: The appellant, Ms Donnelly, who lived in Ireland, obtained an order for service of her plenary summons out of the jurisdiction on the respondent, Vivier and Company Ltd, a company incorporated in New Zealand. The appellant’s claims included claims for defamation and a claim for payment of monies she said were due to her in respect of legal research services she performed for the respondent. The respondent entered a conditional appearance contesting the jurisdiction of the Irish courts and brought a motion to strike out the appellant’s proceedings. That application was successful in the High Court. The appellant appealed to the Court of Appeal against the decision of the High Court and sought to maintain her proceedings against the New Zealand company in Ireland.

Held by Ní Raifeartaigh J that in respect of the appellant’s claim for remuneration in respect of the “Bank Jurisdiction Comparison Project” work, she was not satisfied that the appellant had a good arguable case that any quantum meruit claim she may have falls within any category of Order 11(1)(e) of the Rules of the Superior Courts nor was Ní Raifeartaigh J satisfied that the appellant had reached the threshold “on the merits” of her contract claim to bring herself within Order 11(1)(e), on any version of that threshold test as described in Analog Devices [2002] 1 IR 272 or IBRC v Quinn [2016] 3 IR 197. Ní Raifeartaigh J was of the view that Ireland was not in any event the forum conveniens for the determination of that claim, by reason of the close nexus between the claim and the necessity for a court trying it to adjudicate on the issue of the validity of her resignation from the respondent, a New Zealand company. Ní Raifeartaigh J held that the appellant had failed to show that any of the defamation claims fell within Order 11(1)(f), and the question of discretion and/or forum non conveniens did not arise. Ní Raifeartaigh J held that, given the exceptional nature of the “service out” jurisdiction, the courts must be provided with an appropriate level of detail as to the precise claims being made, the facts supporting those claims, and how they connect with the particular jurisdictional category in Order 11(1) being relied upon. With regard to the alleged torts of intimidation and economic duress, Ní Raifeartaigh J held that this was not done in this case.

Ní Raifeartaigh J dismissed the appeal and uphold the conclusion of the trial judge, albeit on different grounds to those advanced by her.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 6th day of May 2022

The issue under appeal

1 . The appellant, who lives in Ireland, obtained an order for service of her plenary summons out of the jurisdiction on the respondent, a company incorporated in New Zealand. The appellant's claims include claims for defamation and a claim for payment of monies she says are due to her in respect of legal research services she performed for the respondent. The respondent entered a conditional appearance contesting the jurisdiction of the Irish courts and brought a motion to strike out the appellant's proceedings. This application was successful in the High Court. The appellant appeals against the decision of the High Court and seeks to maintain her proceedings against the New Zealand company in Ireland.

Order 11 of the Rules of the Superior Courts and Service out of the Jurisdiction

2 . As the respondent is a company incorporated in New Zealand, Order 11(1) and the common law rules constitute the applicable legal framework. The EU regime (Regulation (EU) 1215/2012 or “Brussels 1 recast”) does not apply. Order 11(1) of the Rules of the Superior Courts (RSC) sets out a number of categories in which service out of the jurisdiction of an originating summons or notice of an originating summons may be permitted. The most relevant categories for present purposes are where:-:

“(e) the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or other relief for or in respect of the breach of a contract

(i) made within the jurisdiction; or

(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or

(iii) by its terms or by implication to be governed by Irish Law, or is one brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

or

(f) the action is founded on a tort committed within the jurisdiction.”

3 . The basic connection between the procedural question of service out of the jurisdiction and the underlying common law rules as to jurisdiction in cases with connections to several countries is well described by Delaney and McGrath, Civil Procedure (4th ed, 2018), who say at paragraph 1–13:

“Given that service is the foundation of jurisdiction, and that service out of the jurisdiction is not permissible except in those circumstances prescribed by Order 11, the question of whether the Irish courts have jurisdiction in a claim involving a foreign defendant or element essentially involves an inquiry as to whether service out is permissible pursuant to Order 11. ….Order 11, rules 1(a)-(s) enumerate the different circumstances in which proceedings can be served out of the jurisdiction. The courts have held that this represents an exhaustive list of situations in which the grant of leave to serve proceedings out of the jurisdiction will be contemplated. Thus, it is imperative that an applicant seeking an order for service out of the jurisdiction bring himself within one of the categories set out therein as otherwise leave will not be granted”. Order 11 is, however, discretionary; the fact that proceedings come within one or more of the categories specified in Order 11, rules 1(a)-(s) does not entitle the applicant as of right to succeed in an application for leave to effect service out of the jurisdiction.” (footnotes omitted).

4 . Order 11, r. 5 provides:-

“Every application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a citizen of Ireland or not, and where leave is asked to serve a summons or notice thereof under r. 1 stating the particulars necessary for enabling the Court to exercise a due discretion in the manner in r. 2 specified; and no leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.”

5 . The burden is on the applicant for leave to demonstrate that “ the case is a proper one for service out of the jurisdiction under this Order” (Order 11, r. 5 RSC). Therefore, an applicant for leave to serve out of the jurisdiction must show (i) that he or she falls within one or more of the categories in the sub-paragraphs of Order 11(1), which are in effect jurisdictional “gateways”; and (ii) that the case is a proper one for service, i.e. that this jurisdiction is forum conveniens.

The reliefs sought by the appellant in these proceedings

6 . Before setting out the reliefs sought by the appellant, some initial background facts may assist in providing some context. A more detailed chronology of events is set out later in this judgment.

7 . The appellant, who was at all material times living and working in Ireland, was a director of the respondent company (“ VCL”) from December 2014 until certain events occurred in the summer of 2017 which are the subject of these proceedings. As noted, the respondent is a company incorporated in New Zealand. The appellant was also a director of a connected Irish company during the same period. This Irish company went through various incarnations and name-changes and references will be made to Home Funding Corporation Limited, Vivier Mortgages Limited (hereinafter “ VML”) and Elstree Mortgages Limited (hereinafter “EML”) in that regard, as these different names feature in the documentary exhibits and affidavits in the case.

8 . The appellant agreed to undertake some legal research for the respondent in connection with a particular project, which she carried out during the year 2015. Central to one of her claims is the contention that she was never paid for this work.

9 . Certain events, described in further detail below, took place in the summer of 2016. There is a serious conflict between the parties as to one particular, and key, event. The respondent maintains that the appellant resigned her position as director of the respondent and sent a resignation letter by email to that effect. The appellant maintains that she did not. She maintains that any email or document purporting to show that she resigned is a forgery. Furthermore, she maintains that she stepped down as a director on a temporary basis with a clear understanding that this was for reasons of public optics only and that it was agreed that she would be entitled to come back after a short period. She also...