Micks-Wallace v Dunne

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 31 March 2023
• Neutral Citation: [2023] IEHC 169
• Court: High Court
• Docket Number: Record Number 2016/594P

Between

Ciara Maeve Micks-Wallace

Plaintiff

and

Gabrielle Dunne and Vincenc Gilete Garcia

Defendants

[2023] IEHC 169

Record Number 2016/594P

THE HIGH COURT

Personal injuries – Strike out – Want of jurisdiction – Second defendant seeking an order setting aside and striking out the proceedings as against the second defendant – Whether there was want of jurisdiction

Facts: The second defendant, Dr Garcia, applied to the High Court seeking: (1) an order pursuant to Order 12 of the Rules of the Superior Courts (the RSC), setting aside service of the personal injuries summons and concurrent amended personal injuries summons (and notice thereof) and striking out the proceedings as against the second defendant for want of jurisdiction; and (2) an order pursuant to Order 11A, Rule 8 of the RSC setting aside and striking out the proceedings as against the second defendant for want of jurisdiction. The factual basis for the claim of the plaintiff, Ms Micks-Wallace, against the first defendant, Ms Dunne, was a road traffic accident of 27 December 2013. The plaintiff’s claim against the first defendant related to alleged wrongs as regards the driving of a vehicle and was essentially a claim in tort. The factual basis for the plaintiff’s claim against the second defendant concerned the quality of the care provided by the second defendant, qua medical professional, in particular, surgery carried out in 2018. The plaintiff’s claim against the second defendant was one of clinical or professional negligence in the context of a pleaded contractual relationship. A ‘live’ issue in the claim by the plaintiff against the second defendant was the question of whether Spanish law applied to the contract.

Held by Heslin J that the evidence before the court allowed for a finding of fact that, at the time the second defendant was joined into the proceedings, the plaintiff’s claim against the first defendant was still ‘live’ (and, therefore, the first defendant was then the anchor defendant). Heslin J could identify no principle in Case C-103/05 Reisch Montage AG v Kiesel Baumaschinen Handels GmbH [2013] ECRI-06827 to support the proposition that a settlement by the plaintiff of her claim against the first defendant, subsequent to the joinder of the second defendant, disentitled her to rely on Art. 8(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters (Brussels Recast Regulations). Heslin J held that such a finding would rob the Regulations of their efficacy and undermine a central objective of same. Heslin J noted that there was no allegation made that the sole intention of the plaintiff was to remove the second defendant from the jurisdiction of the Spanish courts. Heslin J held that the fact that the plaintiff’s claim had settled against the anchor defendant was not a factor which the court was entitled to take into account, and one which undermined the plaintiff’s ability to rely on Art. 8(1). Heslin J held that even if the court took no account whatsoever of the settlement by the plaintiff of her claim against the first defendant, the outcome of the application would be the same. Heslin J was satisfied that the plaintiff had not discharged the onus of demonstrating unequivocally that she came within the Art. 8(1) exception. Well-established principles which emerged from relevant jurisprudence (which counsel for the second defendant outlined comprehensively), once applied to the particular facts in the case, compelled Heslin J to grant the relief sought at para. 2 of the second defendant’s motion which issued on 3 June 2021, i.e. setting aside and striking out the proceedings against the second defendant for want of jurisdiction.

Heslin J held that, in terms of a preliminary view on the costs question, the second defendant had been entirely successful. Heslin J had not identified any fact or circumstance which would merit a departure from the ‘normal’ rule, i.e. that ‘costs’ should ‘follow the event’.

Application granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 31st day of March 2023

Introduction

1 . The second named defendant brings an application seeking:

• 1. An order pursuant to Order 12 of the Rules of the Superior Courts, setting aside service of the personal injuries summons and concurrent amended personal injuries summons (and notice thereof) and striking out the within proceedings as against the second named defendant for one of jurisdiction; and

• 2. An order pursuant to Order 11A, Rule 8 of the RSC setting aside and striking out the within proceedings as against the second named defendant for want of jurisdiction;

Jurisdiction asserted

2 . Later in this judgment I will look closely at the pleas made in the concurrent amended personal injury summons. For present purposes it is sufficient to note that it contains inter-alia the following wording in “Schedule III” thereof:

“The court has the power to hear and determine the plaintiff's claim against the second named defendant pursuant to the provisions of Article 8(1) of Council Regulation 1215/2012 on the basis that the second named defendant is one of a number of defendants, of whom the first named defendant is domiciled in Ireland and the plaintiff's claims against the defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgements resulting from separate proceedings. No other proceedings involving the same cause of action are pending in another contracting state.” (emphasis added)

Brussels Recast

3 . The plaintiff has asserted jurisdiction exclusively on the basis of Article 8 (1) of “ Council Regulation 1215/2012”. This is a reference to “ Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters” (“Brussels Recast” or the “Brussels Recast Regulations” or the “Regulations”).

Article 4

4 . Article 4 of the Brussels Recast Regulations states: “1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.” (emphasis added)

5 . Although the foregoing represents the ‘default position’ (meaning that the second named defendant would be sued in Spain) the words “ Subject to this Regulation…” make clear that there are exceptions.

Article 5

6 . Article 5 of the Regulations begins: “1. Persons domiciled in a member State may be sued in the courts of another member state only by virtue of the rules set out in Sections 2 to 7 of this Chapter” (emphasis added)

Section 2

7 . Section 2 is entitled “ Special jurisdiction” and Article 8 of Section 2 provides:

“A person domiciled in a member State may also be sued:

(1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgements resulting from separate proceedings;”

8 . It is clear from the foregoing that the Plaintiff does not base the jurisdictional claim on an assertion that any contract concerning the second named defendant's services was concluded in this State. The latter assertion is certainly made by the plaintiff but is not something which arises for determination in the present application.

9 . The second named defendant asserts that it cannot be said that the claim in issue is so closely connected that it is expedient to hear and determine the claims together so as to avoid the risk of irreconcilable judgments. It is common case that the second named defendant has at all material times been domiciled in Spain. He also submits that there is no risk of irreconcilable judgments because the claim against the first defendant has been resolved and she is no longer a party.

Certain relevant legal principles

10 . Article 8(1) must be interpreted in light of recitals 15 and 16 of Brussels Recast which state:

“(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make common rules more transparent and avoid conflicts of jurisdiction.

(16) in addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a member state which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.” (emphasis added)

Predictability and Foreseeability

11 . In light of the foregoing the concepts of predictability and foreseeability infuse the proper interpretation of Brussels Recast, in particular the exceptions to the default position. It is also common case that, being a rule of “ special jurisdiction”, the Article 8(1) exception must be interpreted strictly.

Onus on the Plaintiff

12 . Reflective of the above, the onus of proof rests on the plaintiff to establish that the claim “ unequivocally” comes within the relevant exception. The headnote to the Supreme Court's decision in Handbridge Ltd v. British...