RE M.v Anton Lopatin
| Jurisdiction | Ireland |
| Judgment Date | 01 January 1995 |
| Date | 01 January 1995 |
| Docket Number | [1993 No. 4112P Admiralty] |
| Court | High Court |
High Court
Cases mentioned in this report:—
The High Commissioner for India and Others v. Ghosh [1960] Q.B. 134; [1959] 3 W.L.R. 811; [1959] 3 All E.R. 659.
South African Republic v. La Compagnie Franco-Belge du Chemin de Fer du Nord [1897] 2 Ch. 487; 66 L.J. (Ch.) 747; 77 L.T. 241; 46 W.R. 67 C.A.
Practice and procedure - Counterclaim - Defence - Admiralty - Libel - Whether the defendants' claim against the plaintiffs in libel should be disposed of by way of counterclaim or by way of independent action - Whether prosecution of defendants' entire counterclaim should be stayed - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 21, r. 14.
Conflicts of laws - Practice and procedure - Prorogation agreement - Whether plaintiffs' consent to have their claims determined in the Irish High Court according to Irish law included any counterclaim the defendants might bring.
Motion on notice.
The facts have been summarised in the headnote and are fully set out in the judgment of Barr J., infra.
A plenary summons was issued on the 11th June, 1993. On the same day the Master of the High Court made an order for the arrest of the Motor Vessel "Anton Lopatin". Following provision of security for the plaintiffs' claims, the vessel was released. The defendants applied to the court for an order, inter alia, limiting the amount of the security, and the court, by order made on the 19th July, 1993, directed that the defendants be released from the security upon payment to Zapcervis of US$48,437. The plaintiffs' statement of claim was delivered on the 10th November, 1993.
After the institution of this action, the parties entered into an agreement in writing dated the 17th June, 1993, accepting the exclusive jurisdiction of the Irish High Court to try the dispute in accordance with Irish law.
On the 1st February, 1994, a defence and counterclaims, including a claim in libel, were filed.
By motion on notice dated the 2nd June, 1994, the plaintiffs applied to the court for an order pursuant to O. 21, r. 14 of the Rules of the Superior Courts, 1986, directing that the defendants' claim in libel ought not to be disposed of by way of counterclaim but rather by way of an independent action. The plaintiffs also sought an order staying the prosecution of the entire of the defendants' counterclaim.
The motion was heard by the High Court (Barr J.) on the 19th July, 1994.
Order 21, r. 14 of the Rules of the Superior Courts, 1986, provides:—
"14. Where a defendant sets up a counterclaim, if the plaintiff or any other person named in manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply apply to the Court for an order that such a counterclaim may be excluded, and the Court may, on the hearing of such application, make such order as shall be just."
On the 2nd April, 1993, the second plaintiff entered into an agreement with the defendants under which the first plaintiff agreed to provision the M.V. Anton Lopatinand in consideration the defendants agreed to sell all fish caught by the vessel for one year through the exclusive agency of the second plaintiff. The vessel was provisioned at an alleged cost of US$55,987.75.
The defendants contended that specific breaches of the contract by the plaintiffs were such as to frustrate due performance and bring the contract to an end. The defendants then arranged to sell fish to a Korean company, the fish to be trans-shipped on another vessel. The defendants alleged that a letter was written to the owners of that vessel on behalf of the first plaintiff alleging that the fish was stolen property and that the defendants had no right to sell it.
The plaintiffs sued for damages. The parties entered into a prorogation agreement to submit the matter to the jurisdiction of the Irish High Court to be decided according to Irish law. The defendants then counterclaimed for breach of contract, wrongful...
To continue reading
Request your trial
-
Grace Healthcare (Holdings) Ireland Ltd v Brady and Another
...5 . The court's jurisdiction to exclude a counterclaim is a discretionary one as confirmed by Barr J. in RE M. v. Anton Lopatin [1995] 3 I.R. 503. Order 19 Rule 2 6 . Order 19, rule 2 RSC provides that: “ A defendant in an action may set-off, or set up by way of counterclaim against the cla......