Libyan Blue Bird for Air Transport Company LLC v Executive Authority for Special Flights

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Nolan
• Judgment Date: 09 March 2026
• Neutral Citation: [2026] IEHC 139
• Year: 2026
• Docket Number: 2023 3051 P

Between

Libyan Blue Bird for Air Transport Co. LLC

Plaintiff

and

Executive Authority for Special Flights

Defendant

[2026] IEHC 139

2023 3051 P

THE HIGH COURT

Service of proceedings – Disclosure – Forum non conveniens – Defendant seeking to set aside the service of proceedings – Whether the service should be set aside on the grounds of non-disclosure and breaches of the obligation of ubriem fides

Facts: The plaintiff, Libyan Blue Bird For Air Transport Co. LLC, a Libyan registered company, and the defendant, Executive Authority For Special Flights, an executive agency of the Government of Libya, in August of 2017, entered into an Aircraft Lease Agreement for the service and maintenance of an Antonov AN124/100 5A-DKL Aircraft in Libya. The parties agreed that the relevant jurisdiction was defined as “the Republic of Ireland or such other jurisdiction as the Lessor may, in its discretion, agree in writing to be a Relevant Jurisdiction for the purposes of the Agreement”. Clause 23.01 under the heading of “Choice of Law”, said that “this Agreement shall be governed by and construed in accordance with Libyan and Irish law” while Clause 23.02 provided that “In relation to any dispute arising out of or in connection with this Agreement, and for the exclusive benefit of the Lessor, (the Defendant) the Lessee (Plaintiff) hereby irrevocably and unconditionally submits to the Libyan judiciary & jurisdiction of the High Court of Justice in Ireland and waives any objection to proceedings with respect to this Agreement in such Court on the grounds of venue or inconvenient forum”. A dispute arose and the plaintiff issued proceedings in Ireland’s jurisdiction. The defendant applied to the High Court, pursuant to Order 12 Rule 26 of the Rules of the Superior Courts (the Rules) to set aside service of the notice of originating summons and discharge the order of Ferriter J, dated 19 June 2023. The motion also sought a determination that the defendant was entitled to assert sovereign immunity by way of objection to the exercise of the jurisdiction of the court and that the court should decline to assume jurisdiction in the proceedings, however that later was not pressed. Mr Lehane SC for the defendant focused on three core issues: the failure to disclose the existence of another set of proceedings issued by the plaintiff in the North Tripoli First Instance Court, amounting to material non-disclosure, the contract and the choice of law (forum non conveniens) and finally the issue of sovereign immunity.

Held by Nolan J that the facts ought to have been disclosed since they were material to the exercise of the Court’s discretion. He concluded that the service should be set aside on the grounds of non-disclosure and breaches of the obligation of ubriem fides. He held that to refuse the application would allow the plaintiff to forum shop, something which is not permissible pursuant to the requirements of international comity of courts, giving rise to the concerning prospect of two courts in two jurisdictions giving judgment on the same issue. Therefore, on that ground too, Nolan J set aside the service of the proceedings. In circumstances where he had already decided the matter on the other two grounds, he saw no reason to decide the issue of sovereign immunity. If he had been forced to decide the issue, however, he would have been inclined to let the matter be determined at trial.

Nolan J set aside the service of proceedings pursuant to Order 12 Rule 26 of the Rules.

Application granted.

JUDGMENT of Mr. Justice Nolan delivered on the 9 ^th day of March 2026

Introduction

1 . In August of 2017 the Plaintiff, a Libyan registered company and the Defendant, an executive agency of the Government of Libya, entered into an Aircraft Lease Agreement for the service and maintenance of an Antonov AN124/100 5A-DKL Aircraft in Libya. For reasons which are not quite clear the parties agreed that the relevant jurisdiction was defined as “ the Republic of Ireland or such other jurisdiction as the Lessor may, in its discretion, agree in writing to be a Relevant Jurisdiction for the purposes of the Agreement”.

2 . As if that wasn't surprising enough, Clause 23.01 under the heading of “Choice of Law”, says that “this Agreement shall be governed by and construed in accordance with Libyan and Irish law” while Clause 23.02 provides that “In relation to any dispute arising out of or in connection with this Agreement, and for the exclusive benefit of the Lessor, (the Defendant) the Lessee (Plaintiff) hereby irrevocably and unconditionally submits to the Libyan judiciary & jurisdiction of the High Court of Justice in Ireland and waives any objection to proceedings with respect to this Agreement in such Court on the grounds of venue or inconvenient forum”

3 . It will not come as a shock that a dispute has arisen and that the Plaintiff has issued proceedings in this jurisdiction. This application is brought by the Defendant, pursuant to Order 12 Rule 26 of the Rules of the Superior Courts (“the Rules”) to set aside service of the notice of originating summons and discharge the Order of Ferriter J., dated the 19 ^th of June 2023. The motion also seeks a determination that the Defendant is entitled to assert sovereign immunity by way of objection to the exercise of the jurisdiction of this court and that the court should decline to assume jurisdiction in the proceedings, however that later was not pressed.

Background

4 . The Plaintiff is involved in the business of aircraft leasing while the Defendant is an executive agency of the Government of Libya, in essence an emanation of the State of Libya, responsible for providing flights for senior government ministers and officials in Libya.

5 . The aircraft was subject to an aircraft service agreement in 2010 between the Defendant and a Ukrainian registered state-owned private entity called Antonov company (“Antonov”). Antonov had agreed to service and maintain the aircraft on the payment of certain fees. By early 2017 the Defendant was indebted to Antonov for significant sums and the matter was referred to the International Commercial Arbitration Court. In March of 2017 the Defendant agreed to assign to the Plaintiff responsibility for yard fees and the maintenance and payment of debts relating to the maintenance of the aircraft along with its repair and operation.

6 . By the agreement, the subject matter of these proceedings, dated the 28 ^th of August 2017, the Plaintiff agreed to hire, and the Defendant agreed to let the aircraft on terms. The lease was for five years. The Plaintiff had, with the Defendants written approval, the right to sublease or charter the aircraft. Through a complex series of arrangements, the Plaintiff paid over $1 million, on behalf of the Defendant, which it says is was now due and owing.

The Application for Service Out of Jurisdiction

7 . An application for leave to issue proceedings out of jurisdiction pursuant to Order 11 Rule 11(e) (iii) of the Rules was made before Ferriter J. on the 19 ^th of June 2023, grounded on an affidavit of the Plaintiff's solicitor, sworn on the 6 ^th of June 2023. The affidavit is particularly relevant to this application and therefore I shall deal with it in some detail.

8 . After the usual averments, he stated that the contract, by its terms is governed by Irish law and therefore the Irish courts have power, pursuant to Order 11 Rule 11(e) (iii), to grant leave to issue a plenary summons and serve notice of originating summons on the Defendant, out of jurisdiction in Libya. He then set out the nature of the agreement and dispute, as set out above and quotes Clause 23 (the Applicable Law) among others, which I have also set out above.

9 . At Paragraph 28 he said the reference to Libyan law was put beyond doubt by the Defendant's inclusion in the agreement that the Plaintiff's choice of Irish law governing the agreement is valid and binding. He then referred to the next paragraph in the contract regarding jurisdiction, not quoting it in full but in the following terms:-

“ Regarding jurisdiction, the respondent (the Defendant) required the Applicant, (the Plaintiff) by way of the Agreement, to “irrevocably and unconditionally” submit to the “Libyan judiciary & the jurisdiction of the High Court of Justice in Ireland” and therefore any dispute in respect of the Agreement is, at the insistence of the Respondent, to be determined before the High Court of Ireland”.

10 . That is an important averment in circumstances where the Defendant says not only did it not insist that the matter could be determined before the Irish High Court, but it was never asked.

11 . However, the real issue in this case relates to paras. 30 and 31. Again given their importance I shall set them out in full.

“ 30. Should this Honourable Court accede to this application the court would do no more than permit the Applicant to issue and serve the intended proceedings, and the Respondent may choose not to enter an appearance and let the Applicant secure judgment against it in this jurisdiction or may prefer to bring an application to set aside the Order granting leave, and if successful that would be the end of the matter.

31. However, should this application be refused, the Applicant would be without a forum and more particularly, a competent forum, to determine the distribution and therefore it would be left without a remedy. I say and believe this where the Applicant agreed to submit to the “High Court of Justice of Ireland”, and no other, any dispute in respect of the Agreement. Should the application be refused, the Applicant would be prohibited by the Agreement from having any dispute in respect of the Agreement adjudicated by courts of any other jurisdiction. I say I believe but where the Agreement requires it to be governed by and construed in accordance with Irish law, no courts, other than those of...