Minister for Agriculture v Alpe Leipziger A.g.

• Jurisdiction: Ireland
• Judge: Hardiman J.,Keane C.J.,BARRON J.
• Judgment Date: 14 April 2000
• Neutral Citation: [2000] IESC 13
• Court: Supreme Court
• Docket Number: [S.C. No. 67 of 1998]
• Date: 14 April 2000

MIN FOR AGRICULTURE v. LEIPZIGER

BETWEEN

THE MINISTER FOR AGRICULTURE, FOOD ANDFORESTRY

PLAINTIFF/RESPONDENT

AND

ALTE LEIPZIGER BERSICHERUNG AKTIENGESELLESHAFT T. A. ALTELEIPZIGER

DEFENDANT/APPELLANT

[2000] IESC 13

Keane, C. J.

Barron, J.

Murray, J.

McGuinness, J.

Hardiman, J.

67/98

THE SUPREME COURT

Synopsis

Practice and Procedure

Practice and procedure; final or interlocutory order; if order is interlocutory a party is entitled to adduce further evidence by way of affidavit without special leave; contract of insurance dispute; jurisdiction of court contested; High Court held that court had jurisdiction; appealed to Supreme Court and further affidavits filed without leave of court; whether judgment and/or order of High Court on question of jurisdiction was an interlocutory order or a final order; O. 58 r. 8.

Held: Order of High Court on question of jurisdiction is a final order; further affidavits can be admitted only on special grounds with leave of court.

Minister for Agriculture v. Alte Leipziger - Supreme Court: Keane C.J.*(*dissenting), Barron J., Murray J., McGuinness J., Hardiman J. - 14/04/2000 - [2000] 4 IR 32 - [2001 1 ILRM 519

The plaintiff had issued proceedings seeking a declaration to the effect that he had an indemnity in respect of losses arising out of a contract of insurance. The defendant brought a motion seeking to have the proceedings set aside on the grounds that sole jurisdiction to hear the matter was conferred upon the Tribunal de Commerce in Paris. In the High Court Laffoy J held that the Minister was entitled to maintain proceedings under Article 8 of the Brussels Convention. The defendant appealed this order and sought to have certain further evidence admitted by the Supreme Court. The plaintiff claimed that as the appeal was not an appeal from an interlocutory order the evidence in question could only be admitted on special grounds. Keane CJ held that the order under appeal was interlocutory in nature and could not be said to be final in nature and the evidence in question could be admitted without special leave. Barron J held that the order in question did not deal with the merits of the cause of action. The order being appealed from was for the purposes of Order 58, rule 8 a final order. Hardiman J held that the order of Laffoy J was a final order on the question of jurisdiction subject only to appeal. As a result further affidavits could only be admitted by special leave of the court as envisaged under Order 58, rule 8. Murray J and McGuinness J agreed with Barron J and Hardiman J.

Citations:

RSC O.58 r8

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S3

BRUSSELS CONVENTION 1968 ART 5(1)

BRUSSELS CONVENTION 1968 ART 8

BRUSSELS CONVENTION 1968 ART 9

RSC O.11(a) r1

RSC O.11(a) r8

RULES OF SUPERIOR COURTS (NO 1) 1989 SI 14/1989

RSC O.11(a) r2

BRUSSELS CONVENTION 1968 ART 16

BRUSSELS CONVENTION 1968 ART 17

BRUSSELS CONVENTION 1968 ART 18

RSC O.12 r26

RSC O.12 r2

RSC O.12 r2(3)

KUTCHERA V BUCKINGHAM INTERNATIONAL HOLDINGS LTD 1988 IR 61

TOAL V DUIGNAN (NO 2) 1991 ILRM 140

PAGE, IN RE; HILL V FLADGATE 1910 1 CH 489

SALTER REX & CO V GHOSH 1971 2 QB 597

BOZSON V ALTRINCHAM URBAN DISTRICT COUNCIL 1903 1 KB 547

SALAMAN V WARNER 1891 1 QB 734

DALE V BRITISH COAL CORPORATION 1992 1 WLR 965

ZUCKERMAN "PRACTICE & PROCEDURE" 1993 AER ANNUAL REVIEW 356

BRUSSELS CONVENTION 1968 ART 12(5)

BRUSSELS CONVENTION 1968 ART 12

BRUSSELS CONVENTION 1968 ART 12(A)

BRUSSELS CONVENTION 1968 ART 12(A)(1)(b)

BRUSSELS CONVENTION 1968 ART 12(A)(4)

LYNCH V MACKIN 1970 IR 180

LADD V MARSHALL 1954 1 WLR 1489

SHUBROOK V TUFNELL 1882 9 QBD 621

WHITE V BRUNTON 1984 QB 570

ANGLO-AUTO FINANCE (COMMERCIAL) LTD V DICK UNREP 4.12.1967 CA; BAR LIBRARY TRANSCRIPT NO 320A

RSC O.50

1 Hardiman J.delivered the 14th day of April2000

2 The facts of this matter and the history of the proceedings are comprehensively set out in the judgment of the learned Chief Justice and it is unnecessary to repeat them here.

The Issue

3 The issue in this case is whether the Order against which the Defendant has brought its appeal is "an interlocutory judgment or order", or on the other hand is "a final judgment or order" within the meaning of Order 58, Rule 8 of the Rules of the Superior Courts.

4 Upon the determination of this issue depends whether either party is entitled to adduce further evidence by way of affidavit without special leave. Although this Court has not heard any argument beyond what has been directed to the issue identified above, it appears that that issue is a significant one in the circumstances of the case.

The Pleadings

5 For the purpose of this issue, it is necessary only to refer to certain aspects of the pleadings.

6 The general Endorsement of Claim of the Plenary Summons issued on the 23rd December 1993 grounds the Courts jurisdiction to hear the case in the following way:

7 2 "6. This Honourable Court has power under the jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988to hear and determine the within claim pursuant to Article 5(1), Article 8 and Article 9 of the Brussels Convention on jurisdiction and the enforcement of judgments in Civil and Commercial Matters.

8 7. No proceedings between the parties concerning the same cause of action is pending between the parties in another contractingState".

9 This part of the Endorsement of Claim demonstrates that the proceedings are governed by the 1968 Convention and the 1988 Act, as these instruments are defined in Order 11(a) Rule 1 and Rule 8 of the Rules of the Superior Courts. The whole of Rule 11(a) was incorporated into the Rules by virtue of Statutory Instrument 14/1989, shortly after the passage of the 1988 Act. The parts of the Endorsement of Claim quoted above are pleaded so as to comply with Order 11(a) Rule 2, permitting service of proceedings of the jurisdiction without leave of the Court if, but only if, the summons complies with the followingconditions:

10 2 "(1) The claim made by the summons is one which by virtue of the 1988 Act the Court has power to hear and determine;and

11 (2) No proceedings between the parties concerning the same cause of action is pending between the parties in another contracting Stateand

12 (3) either:

13 (a) the Defendant is domiciled at any contracting State,or

14 (b) the proceedings commenced by the originating summons are proceedings to which the provisions of Article 16 of the 1968 Convention concerning exclusive jurisdiction apply, or

15 (c) the Defendant is a party to an agreement conferring jurisdiction to which the provisions of Article 17 of the 1968 Convention concerning prorogation of jurisdictionapply."

Contesting the Jurisdiction in Order 11A Proceedings

16 The same Statutory Instrument referred to above, S. I 14/1989 inserted a new Rule 2 in Order 12, dealing with "Appearance".Order 12 Rule 2(3) provides:

"An appearance to an originating summons in respect of proceedings issued for service out of the jurisdiction under Order 11(a) Rule 2 (including an appearance entered solely to contest jurisdiction by virtue of Article 18 of the 1968 Convention). shall be entered....",

17 and there follows certain time limits.

18 Section 3 of the 1988 Act gives the force of law in the State to certain conventions including the 1968 Convention as amended. Article 18 of that Convention provides:

"Apart from jurisdiction derived from other provisions of this Convention, a Court of a contracting State before whom a Defendant enters an appearance shall havejurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction of where another Court has exclusive jurisdiction by virtue of Article 60."

19 It appears that the insertion of the new Order 12 Rule 2 brought about a considerable change in the scheme of the rules in relation to contests as to jurisdiction. Prior to 1989 the rules appear to have envisaged dealing with such matters by the bringing of a motion under Order 12 Rule 26 either to set aside the service or to discharge an Order authorising service. Rule 26 envisages this motion being brought prior to entering an appearance. The practice, however, was to enter a "conditional appearance", itself a procedure provided for in the Rules of the Superior Courts of England and Wales, but not in our Rules. This course was followed in Kutchera v Buckingham International Holdings Limited (1988) IR 61.This was a case where the Plaintiff had obtained an Order giving him liberty to serve a summons outside the jurisdiction and the Defendant entered a conditional appearance for the purpose of contesting jurisdiction only. In a note to the head note of the Report, page 63 the following is said:

"While Order 12 appears to require that a Defendant's Notice of Motion must be served before he has entered an appearance, the practice is for Defendants to enter a "conditionalappearance" prior to the service of the Motion. This conditional appearance is expressed to be "without prejudice" and recites that the appearance was entered "for the purpose of contesting jurisdiction only". Conditional appearances are specifically provided for in the corresponding English rules of the Court but do not appear in the Rules of the Superior Courts, and their status in this jurisdiction has not been judiciallydetermined."

20 The combined effect of Section 3 of the 1988 Act and the new Order 12 Rule 2 is expressly to recognise that an appearance may be entered solely to contest the jurisdiction.

21 That is what was done in this case. A "Memorandum of Appearance to context the jurisdiction of the Court" was filed on the 8th November 1994 and its terms are set out in the judgment of the learned Chief Justice. The Plaintiff's Solicitor was notified of it on the same day by being sent a...