Joe Moroney Coach Hire Ltd v Moseley in the South Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 24 October 2022
• Neutral Citation: [2022] IEHC 586
• Court: High Court
• Docket Number: [Record No. 2019/1706 P]

Between

Joe Moroney Coach Hire Limited

Plaintiff

and

Moseley in the South Limited and Van Hool NV

Defendants

[2022] IEHC 586

[Record No. 2019/1706 P]

THE HIGH COURT

Breach of duty – Jurisdiction – EU Council Regulation 1215/2012 – Defendants seeking to have the plaintiff’s plenary summons set aside – Whether the proceedings should be struck out for want of jurisdiction

Facts: The plaintiff, Joe Moroney Coach Hire Ltd, operated a luxury coach hire business. The plaintiff purchased from the first defendant, Moseley In The South Ltd (the UK defendant), a luxury coach fitted out to the plaintiff’s specifications which had been newly manufactured by the second defendant, Van Hool NV (the Belgian defendant). It was claimed that the coach was defective. The plaintiff commenced proceedings by way of plenary summons issued in February 2019. There was a claim for rescission of contract and damages for breach of contract made against the UK defendant only. There was then a claim made against both defendants for damages for negligence, breach of duty and breach of statutory duty, together with various ancillary reliefs. Both of the defendants entered conditional appearances for the purposes of contesting jurisdiction and brought separate motions seeking to have the plaintiff’s plenary summons set aside under O. 12, r. 26 of the Rules of the Superior Courts or, alternatively, to have the proceedings struck out for want of jurisdiction. All parties agreed that the High Court’s jurisdiction fell to be determined under EU Council Regulation 1215/2012, otherwise known as the Brussels 1 Recast Regulation.

Held by Butler J that the plaintiff had not established that the Irish courts had jurisdiction in respect of the claim in contract made by it against the UK defendant. Consequently, she allowed the UK defendant’s motion. She held that the High Court would make an order pursuant to O. 12, r. 26 setting aside the issue of the plenary summons and the service of a notice thereof on the UK defendant. For the sake of completeness, she held that she would also make an order striking out the plaintiff’s proceedings against the UK defendant for want of jurisdiction in accordance with the Brussels 1 Recast Regulation.

Butler J found that the plaintiff had discharged the onus upon it establishing that Article 7(2) of the Brussels 1 Recast Regulation conferred jurisdiction upon the Irish courts in respect of its claim against the Belgian defendant. Consequently, she held that she would refuse the relief sought in the Belgian defendant’s motion.

Relief sought in first defendant’s motion granted. Relief sought in second defendant’s motion refused.

JUDGMENT of Ms. Justice Butler delivered on the 24 ^th day of October 2022

Introduction

1 . This judgment deals with the jurisdiction of the Irish courts to hear the plaintiff's claim against the defendants arising out of the purchase by the plaintiff from the first defendant of a luxury coach which had been manufactured by the second defendant. The first defendant is a company based in the United Kingdom (“ the UK defendant”) and the second defendant is a company based in Belgium (“ the Belgian defendant”). Both of the defendants have entered conditional appearances for the purposes of contesting jurisdiction and have brought separate motion seeking to have the plaintiff's plenary summons set aside under O. 12, r. 26 of the Rules of the Superior Courts or, alternatively, to have the proceedings struck out for want of jurisdiction. All parties agreed that the court's jurisdiction falls to be determined under EU Council Regulation 1215/2012, otherwise known as the Brussels 1 Recast Regulation but which, for convenience, I will refer to as the Brussels Regulation. This regulation replaced an earlier one to similar effect, Council Regulation 44/2001, which in turn replaced an even earlier Convention, the 1968 Brussels Convention. Some of the case law relied on by the parties considered similar or identical provisions of the earlier legislation.

The Plaintiff's Claim

2 . The plaintiff operates a luxury coach hire business and the claim arises out of the purchase of a newly manufactured luxury coach fitted out to the plaintiff's specifications which, it is claimed, is defective. The plaintiff commenced these proceedings by way of plenary summons issued in February 2019, alleging negligence and breach of duty, including breach of statutory duty against both defendants. However, the relief sought as against each defendant is different in a manner which is material to the issues which the court has to determine. There is a claim for rescission of contract and damages for breach of contract made against the UK defendant only. The contract is described as being one “made… in or about May 2013” and related to the purchase of the 59-seater luxury coach. There is then a claim made against both defendants for damages for negligence, breach of duty and breach of statutory duty, together with various ancillary reliefs.

3 . It should be noted at this stage that the plaintiff has issued a motion under O. 15, r. 2 RSC seeking to join “Joseph Maroney trading as Joe Moroney Coaches” as a co-plaintiff to the proceedings and seeking liberty to amend the statement of claim under O. 28, r. 2 and 6. According to an affidavit sworn by the plaintiff's solicitor, Joseph Moroney incorporated his business on 15 December 2016, subsequent to the purchase of the coach and prior to the institution of the proceedings. Mr. Moroney then transferred his assets, including the coach, to the newly formed business. Because the solicitor took over the file from another firm of solicitors shortly before the proceedings were instituted in 2019, he was unaware that the business had previously been run and the coach purchased by Mr. Moroney in his personal capacity. Logically, it is necessary for the court to determine whether it has jurisdiction to deal with the case at all before proceeding to make any orders joining additional parties. Although the Belgian defendant initially made some arguments based on the fact that the plaintiff's action concerns an agreement allegedly made in 2013 when it did not come into existence until 2016, ultimately, and quite properly, it did not pursue any issue as to the identity of the plaintiff for the purposes of these motions.

4 . The plenary summons is endorsed pursuant to O. 11A of the Rules of the Superior Courts. The endorsement asserts the power of the court to hear and determine the claim against both defendants pursuant to the provisions of Article 7(1) and (2) of the Brussels Regulation. It also identifies, at para. 3 “the place of the performance of the obligations arising under the contract the subject matter of these proceedings” as being within the jurisdiction of the Irish courts. Similarly, at para. 4, the endorsement recites that “the harmful events” the subject of the proceedings occurred in this jurisdiction. Finally, the domicile of each of the defendants under Article 62 of the Brussels Regulation is correctly recorded as being the UK and Belgium respectively. This endorsement allowed for service out of the jurisdiction on the defendants without leave of the court. It might be noted that although the UK has since left the EU, it was a member at the time of the events giving rise to the proceedings and at the time the proceedings were issued and there is no dispute but that the UK defendant's application falls to be determined pursuant to the terms of the Brussels Regulation.

5 . As previously noted, both defendants entered conditional appearances as for the purposes of contesting the jurisdiction of the High Court and did so in July 2019. The plaintiff served a statement of claim on 2 May 2020. The manner on which the case is pleaded in the statement of claim is of some significance as many of the averments made by Mr. Moroney in the affidavits filed in these motions differ materially from the way in which the case was initially pleaded on his behalf. Crucially, at para. 4 of the statement of claim, the plaintiff pleads that the purchase of the coach for total price of €344,950 (cash plus trade-in value) was “by an oral agreement, evidenced in writing in or around the time of delivery, made between the plaintiff… and the first name defendant… concluded in or around May 2013”.

6 . At para. 5 of the statement of claim, it is pleaded that the vehicle was manufactured by and/or imported into the State by the Belgian defendant and that, consequently, that defendant owed the plaintiff a duty under the Liability for Defective Products Act 1991. Given the circumstances of delivery of the coach, the plaintiff did not pursue the contention that it had been imported into the State by the Belgian defendant. At para. 6, it is pleaded that the plaintiff requested and paid a significant premium to have a coach customised to its needs and that both defendants were aware of the plaintiff's particular requirements as it had been discussed with each of them “in detail during the negotiations culminating in the conclusion of the agreement and the delivery of the coach in or around May 2013”. Paragraph 7 pleads a series of duties allegedly owed by the defendants to the plaintiff both generally and, in the case of the UK defendant, by virtue of the contract between the parties. No distinction is drawn between the duties allegedly owed under the contract and as a matter of general law. The duties pleaded relate to ensuring that the coach was fit for purpose and of merchantable quality.

7 . It is then pleaded that in breach of these terms, conditions and duties, the coach was defective and particulars are provided. The details of the defects alleged are not relevant to the question of jurisdiction. According to the consulting engineer who inspected the vehicle on behalf of the plaintiff, the main problem seems to have been with the...