Patrick Burke v UVEX Sports GmbH and Motorrad TAF GmbH
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 08 March 2005 |
| Neutral Citation | [2005] IEHC 68 |
| Court | High Court |
| Docket Number | [2003 No. 4850 P] |
| Date | 08 March 2005 |
[2005] IEHC 68
THE HIGH COURT
BETWEEN
AND
EEC REG 44/2001 ART 5(3)
EEC REG 44/2001 ART 24
LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S2
LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991 S5
ATHANASIOS KALFELIS v BANKHAUS SCHRODER, MUNCHMEYER, HENGST & CO CASE 1988 ECR 5565
BRUSSELS CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGEMENTS IN CIVIL & COMMERCIAL MATTERS ART 5(3)
EEC REG 44/2001 ART 5(1)(a)
EEC REG 44/2001 ART 28(3)
LTU v EUROCONTROL 1976 ECR 1541
EEC REG 44/2001 ART 76
EEC REG 44/2001 ART 60(1)
BRUSSELS CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGEMENTS IN CIVIL & COMMERCIAL MATTERS ART 2BRUSSELS CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGEMENTS IN CIVIL & COMMERCIAL MATTERS ART 5(1)
HEDLEY BYRNE & CO LTD v HELLER & PARTNERS LTD 1964 AC 465 1963 3 WLR 101
FINLAY v MURTAGH 1979 IR 249
KAYE CIVIL JURISDICTION & ENFORCEMENT OF FOREIGN JUDGEMENTS 510
KROPHOLLER EUROPAISCHES ZIVILPROZESSRECHT 1982 64 ART 5
REUNION EUROPEENNE SA v SPLIETHOFF'S BEVRACHTINGSKANTOOR BV & THE MASTER OF THE VESSEL ALBLASGRACHT V002 1998 ECR I 5611
EEC REG 44/2001 S4 ART 15
EEC REG 44/2001 S4 ART 16
EEC REG 44/2001 S4 ART 17
O'CALLAGHAN v O'SULLIVAN 1925 IR 90
EEC REG 44/2001 ART 28
BRUSSELS CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGEMENTS IN CIVIL & COMMERCIAL MATTERS ART 22
CONFLICT OF LAWS
Brussels Convention Contract - Tort - Jurisdiction - - Mutual exclusivity - Defective product - Purchase outside jurisdiction - Injuries within jurisdiction - Whether contractual relationship however basic overlooked - Kalfelis v Schroder (Case 189/87) [1988] E.C.R. 5565 approved -Liability for Defective Products Act 1991 (No 28) - Council Regulation EC/44/01 - European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 - Declaration of no jurisdiction granted (2003/4850P - Herbert J - 8/3/2005) [2005] IEHC 68; [2005] 4 IR 452 - Burke v UVEX Sports Gmbh
JUDGMENT of Mr. Justice Herbert delivered the 8th day of March, 2005
The Plenary Summons in this case was issued on 15th April, 2003.
In it the Plaintiff claims damages for personal injuries, loss, and damage sustained and suffered by him as a result of the negligence and breach of duty, including breach of Statutory duty, of the first named Defendant whose registered offices are in Furth, in the Federal Republic of Germany and the second named Defendant whose registered place of business is Ansbach in the Federal Republic of Germany.
The Certificate as to Jurisdiction indorsed on the Plenary Summons is in the following terms:-
"The Court has power under Council Regulation (EC) No. 44/2001 of the 22nd day of December, 2000 to hear and determine the Plaintiff's claim against the Defendants and the Court should assume Jurisdiction to hear and determine the said claims under the provisions of Articles 5(1) and (3) of Council Regulation (EC) No. 44/2001."
Conditional Appearances were entered on behalf of both named Defendants so that the provisions of Article 24 of Regulation No. 44/2001 do not apply in this case.
The Statement of Claim was delivered by the Plaintiff on 15th July, 2004. At para. 4 of this Statement of Claim is it pleaded as follows:-
"In the month of August, 1999, the Plaintiff purchased a motorcycle helmet, with a visor fitted thereto, from the second named Defendant and the said helmet and visor was manufactured by the first named Defendant herein."
The nature of the Plaintiff's claim as appears from the Statement of Claim is that on 5th May, 2000, while riding his motorcycle on the public roadway at Rosegreen, Cashel, in the County of Tipperary in this Member State of the European Community, his motorcycle skidded because of the alleged presence of gravel or other extraneous material on the road surface and struck a roadside bank or fence. The visor of the motorcycle helmet broke, and caused or permitted the Plaintiff to suffer severe injuries to his upper lip, his nose and, the inside of his mouth.
The Plaintiff's claim is framed solely in tort against both Defendants, at Common Law and, additionally as against the first named Defendant only, pursuant to the provisions of Sections 2 and 5 of the Liability for Defective Products Act, 1991.
By a Motion on Notice dated 13th December, 2004, which came on for hearing before this Court on 28th February, 2005, the second named Defendant now seeks a Declaration that in the circumstances of the case this Court has no Jurisdiction over the subject matter of the proceedings as against the second named Defendant.
By a letter dated 21st February, 2005, the Solicitors for the Plaintiff notified the Solicitors for the second named Defendant that at the hearing of the Motion above mentioned, the Plaintiff would apply to the Court to amend the Claim indorsed on the Plenary Summons so as to delete from the certificate as to jurisdiction the reference to Article 5(1) of Council Regulation (EC) No. 44/2001. At the hearing, Counsel for the Plaintiff confirmed and admitted that the Plaintiff's claim against both Defendants in these proceedings lay solely in tort.
Counsel for the second named Defendant relied upon the decision of the European Court of Justice in the case of Athanasios Kalfelis v. Bankhaus Schröder, Münchmeyer, Hengst and Co. and Others, case 189/87 [1988] E.C. R, 5565 at 5585 where the Court in considering Article 5(3) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed 27th September, 1968, held as follows at page 5585:-
"...the concept of matters relating to tort, delict or quasi-delict must be regarded as an autonomous concept which is to be interpreted by the application of the Convention, principally by reference to the scheme and objects of the Convention in order to ensure that the latter is given full effect.
In order to ensure uniformity in all Member States it must be recognised that the concept of "matters relating to tort, delict or quasi-delict", covers all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5(1)."
Counsel for the second named Defendant submitted to this Court that it necessarily and inevitably followed from the pleading at Para. 4 of the Plaintiff's Statement of Claim that this was, so far as the second named Defendant was concerned, a matter relating to a contract. Therefore, he said, despite the claim being pleaded solely in tort against the second named Defendant, jurisdiction was governed exclusively by Article 5(1) of Regulation No. 44/2001.
The argument of counsel for the Plaintiff proceeded on the following lines:-
The several bases of special jurisdiction in Article 5 of Regulation No. 44/2001 are entirely distinct and separate. The Plaintiff had a Constitutional and legal right to found his claim against both Defendants in Tort and the Court was not empowered to go behind that pleading. Having advanced his claim solely in Tort the Plaintiff was entitled to rely on the provisions of Article 5(3) to found jurisdiction. He could not be deprived of this right merely because there was a contract somewhere in the background of the case. Article 5(1) should not be construed in this manner, particularly where this might result in the Plaintiff being out of time to sue the second named Defendant in the Federal Republic of Germany. The claims against the Defendants if heard in the Courts of different Member States as a result of the application of Article 5(1)(a) would be, "related actions" as defined by Article 28(3) with the consequent risk of irreconcilable judgments against the first named Defendant and accordingly Article 5(3) must be given a construction to avoid such a result-.
Counsel for the Plaintiff sought to distinguish the judgment of the European Court of Justice in Kalfelis v. Schröder (above cited) on the ground that it was an action in which the Plaintiff claimed relief in the same action in, contract, tort and unjust enrichment and he submitted that the only issue determined by the Court was that in those circumstances a...
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