Michael O'Flynn and Others v Carbon Finance Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian J. McGovern |
| Judgment Date | 06 October 2014 |
| Neutral Citation | [2014] IEHC 439 |
| Court | High Court |
| Date | 06 October 2014 |
[2014] IEHC 439
THE HIGH COURT
BETWEEN
AND
RSC O.11
RSC O.12 r26
RSC O.11 r1(E)
RSC O.11 r1(F)
RSC O.11 r1(H)
MCCARTHY v PILLAY & PILLAYS GENERAL HOSPITAL LTD T/A CITY GENERAL HOSPITAL 2003 1 IR 592 2003 2 ILRM 284 2003/40/9509
RSC O.11 r1
RSC O.11 r2
ANALOG DEVICES BV & ORS v ZURICH INSURANCE CO & ANOR 2002 1 IR 272 2002 2 ILRM 366 2002/1/187
NATIONAL EDUCATIONAL WELFARE BOARD v RYAN & ORS 2008 2 IR 816 2007/44/9243 2007 IEHC 428
RSC O.19 r27
RSC O.19 r5
KELLY & O'SULLIVAN v LENNON 2009 3 IR 794 2009/31/7538 2009 IEHC 320
KUTCHERA v BUCKINGHAM INTERNATIONAL HOLDINGS LTD 1988 IR 61
NATIONAL EDUCATIONAL WELFARE BOARD v RYAN & ORS 2008 2 IR 816 2007/44/9243 2007 IEHC 428
MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP CLARKE 6.3.2009 2009/40/9929 2009 IEHC 214
Statement of claim – Out of jurisdiction – Facility agreements – Defendant seeking order discharging order granting leave to plaintiffs to serve proceedings on defendant out of jurisdiction – Whether an order granted ex parte should be set aside
Facts: The first of two motions brought before the High Court was an application by the sixth defendant, the Blackstone Group LLP, for an order discharging the order of O”Malley J made on 26th August, 2014, whereby she granted leave to the first and second plaintiffs, Mr Michael O”Flynn and Mr John O”Flynn, to issue and serve proceedings on the sixth defendant out of the jurisdiction. The sixth defendant brought the application on the grounds that the affidavit sworn on behalf of the first and second plaintiffs grounding the application did not meet the requirements of O. 11 of the Rules of the Superior Courts and did not set out the requisite material and facts to justify the relief sought. The plaintiffs argued that they have met the test set out in McCarthy v Pillay [2003] 1 IR 592 and that the sixth defendant had not taken issue with any of the factual contents of the plaintiffs” affidavits. The second motion was brought by the first defendant, Carbon Finance Ltd, the sixth defendant, and the seventh defendant, the Blackstone Group International Partners LLP, for an order striking out para. 11 of the statement of claim on the basis that they referred to various facility agreements which are subject to the exclusive jurisdiction of the English Courts, made under O. 19, r. 27, and for other ancillary orders striking out the proceedings on the basis that inadequate particulars of the claim had been furnished.
Held by McGovern J that the plaintiffs have met the test of setting out a ‘ good arguable case’ as articulated in Analog Devices BV v Zurich Insurance Company [2002] 1 IR 272; the statement of claim pleaded conspiracy and the affidavit of Mr O”Flynn set out, in sufficient detail, the matters alleged to connect the sixth defendant with the conspiracy alleged. McGovern J held that the plaintiffs set out sufficient grounds for establishing that they were entitled to an order joining the sixth named defendant under O. 11, r. 1(f) and Order 11, rule 1(h). Since the sixth defendant had not challenged any of the factual evidence before O”Malley J, McGovern J saw no reason to discharge the order which O”Malley J made on the ex parte application. McGovern J was satisfied that in the circumstances of the case, the defendants are entitled to raise the jurisdiction point with regard to the agreements which were subject to English law and English jurisdiction. He was also satisfied that he was obliged to give effect to the choice of legislation agreed by the parties; the plaintiffs could not maintain their claims in Ireland”s jurisdiction as not only did they agree that they were subject to the exclusive jurisdiction of the English Courts and were subject to English law, but they also agreed that in each of those agreements the courts of England are the most appropriate and convenient courts to settle disputes and accordingly, that no party to those agreements would argue to the contrary. In those circumstances McGovern J held that the plaintiffs cannot maintain that the Irish Courts held jurisdiction to entertain those claims and they are bound to fail. Accordingly, McGovern J granted an order pursuant to O. 19, r. 27 striking out para. 11 of the statement of claim insofar as that paragraph makes reference to the facility agreements referred to in the notice of motion as agreements ‘CF03’, ‘CF04’, ‘CF05’, ‘CF07’ and ‘CF08’, doing so on the basis that the reliefs sought with regard to those agreements will prejudice, embarrass and delay the trial of the action and on the basis that they are subject to the exclusive jurisdiction of the English Courts. He also made this order pursuant to his inherent jurisdiction on the basis that a determination by the High Court of the construction of the agreements which are subject to the exclusive jurisdiction of the English Courts are bound to fail. So far as the balance of the motion was concerned, McGovern J was satisfied that the plaintiffs have met the test set out in National Educational Welfare Board v Ryan [2008] 2 IR 816. He held that the plaintiffs have furnished reasonable particulars of the claim and had done the best they can at that stage. He was also satisfied that, on the basis of the particulars furnished, the defendants have reasonable knowledge of the nature of the conspiracy and related economic torts alleged against them.
McDermott J held that the plaintiffs have set out their claim with sufficient particularity to entitle them to the order joining the sixth defendant. McDermott J held that he should refuse the application for further particulars and the application pursuant to O. 19, r. 5 and O. 19, r. 27 striking out the claim of the plaintiffs on the ground of no particulars or insufficient particulars.
Application refused in part.
1. There are two motions before the court in these proceedings. The first is an application by the sixth named defendant for an order discharging the order of O'Malley J. made on 26 th August, 2014, whereby she granted leave to the first and second named plaintiffs to issue and serve proceedings on the sixth named defendant out of the jurisdiction. The sixth defendant brings the application on the grounds that the affidavit sworn on behalf of the first and second plaintiffs grounding the application did not meet the requirements of the O. 11 of the Rules of the Superior Courts and did not set out the requisite material and facts to justify the relief sought. ( "The first motion")
2. The second motion is brought by the first, sixth and seventh defendants for an order striking out para. 11 of the statement of claim on the basis that they referred to various facility agreements which are subject to the exclusive jurisdiction of the English Courts and for other...
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