Rye Valley Foods Ltd v Fisher Frozen Foods Ltd

• Jurisdiction: Ireland
• Judge: O'Sullivan J
• Judgment Date: 10 May 2000
• Neutral Citation: [2000] IEHC 116
• Docket Number: Record No. 3886p/1999
• Court: High Court
• Date: 10 May 2000

[2000] IEHC 116

THE HIGH COURT

Record No. 3886p/1999

RYE VALLEY FOODS LTD. v. FISHER FROZEN FOODS LTD

BETWEEN

RYE VALLEY FOODS LIMITED

PLAINTIFF

AND

FISHER FROZEN FOODS LIMITED

DEFENDANT

Citations:

BRUSSELS CONVENTION 1968 ART 2

BRUSSELS CONVENTION 1968 ART 5(1)

BRUSSELS CONVENTION 1968 ART 5(3)

HANDBRIDGE LTD V BRITISH AEROSPACE COMMUNICATIONS LTD 1993 3 IR 342

DE BLOOS V BOUYER 1976 ECR 1497

VISKASE LTD V KIEFEL GMBH 1999 3 AER 362

KALFELIS V BANKHAUS SCHRODER 1988 ECR 5565

BIO MEDICAL RESEARCH LTD T/A SLENDERTONE V DELATEX SA UNREP MCCRACKEN 6.5.1999 1999/2/334

Synopsis

Practice and Procedure

Service out of the jurisdiction; Brussels Convention; defendant English company agreed to deliver goods to an address in England for collection by plaintiff Irish company; plaintiff alleging that goods defective; defendant seeking to have service of plenary summons set aside on ground that High Court does not have jurisdiction to hear and determine the claims; claims in contract and in tort; parties had had continuous dealings with each other since 1996; contractual claim; nature of relevant obligation under Art. 5(1) Brussels Convention; whether relevant obligation to be performed in Ireland or in England; whether contract modified by umbrella agreement arising out of continuing relationship between the parties; tort claim; whether concept of "tort, delict or quasi-delict" in Art. 5(3) autonomous and independent of national law; whether claim related to the contract; Arts. 2, and 5(1) and (3) Brussels Convention.

Held: Judgment for defendant.

Rye Valley Foods Ltd v. Fisher Frozen Foods Ltd - High Court: O'Sullivan J. - 10/05/2000

The plaintiff, who was based in Ireland, ordered goods from the defendant, who was based in England, on a regular basis. The plaintiff claimed that one of the shipments was defective and initiated proceedings in Ireland, claiming damages both in contract and tort. The defendant claimed that the deliveries of the goods took place at its premises in England and that the plaintiff arranged for delivery thereafter to its own premises in Ireland. The defendant claimed that the contract in question was performed in England, that any alleged breach consequently took place in England and that England was therefore the appropriate jurisdiction to pursue proceedings. O'Sullivan J held that the defendant was under an obligation to deliver goods of merchantable quality in England. Consequently any alleged breach took place in England. In addition any claim in tort arising out of the alleged breach was a claim clearly related to the breach of contract claim and should be dealt with in the one claim as envisaged by the Brussels Convention. The court would therefore accede to the defendant's motion to set aside the plenary summons of the plaintiff.

1 O'Sullivan J delivered the 10th of May, 2000.

INTRODUCTION

2 The Defendant has brought a motion seeking to have service of the Plaintiff's plenary summons set aside on the ground that this Court does not have jurisdiction to hear and determine the claim.

3 The Plaintiff is an Irish company registered here and the Defendant an English company registered there. On the 22nd January, 1997 the Plaintiff took delivery of a consignment of frozen bean sprouts from the Defendant's store in Buckinghamshire for use in its food processing business in Co. Monaghan. The goods were allegedly defective and the Plaintiff's claim sounds in contract and tort.

4 The defendant submits that Article 2 of the Convention of jurisdiction and the Enforcement of Judgements in Civil Commercial matters, which provides that persons domiciled in a contracting state shall be sued in the Courts of the state, governs this case.

5 The Plaintiff relies on the exceptions to this general rule set out in Article 5(1) and (3) which specify that such a person may be sued in contract cases in the place of performance of the obligation in question and in tort cases in the place where the harmful event occurred - both of which, says the Plaintiff, were at Carrickmacross, Co. Monagham.

BACKGROUND

6 The Defendant began supplying frozen fruit and vegetables to the Plaintiff in early 1996. The Plaintiff usually ordered the goods by telephone which were then sent by the Defendant to the Plaintiff's premises in Carrickmacross, the price including cost of transport. On occasion, however, when the Plaintiff ran short of a particular line of vegetables, it would place a supplemental order on an "ex store" basis, the place of delivery being the Defendant's own premises: in these cases the Plaintiff itself arranged the transportation of the goods. At one stage such "ex store" purchases amounted to between 5% and 10% of the overall but have become less frequent as the Plaintiff's business increased.

7 The delivery of bean sprouts in the present case was one of the increasingly infrequent "ex store" deliveries. The Plaintiff made an urgent request for this consignment on or about the 22nd January, 1997 and the Defendant arranged for delivery to the Plaintiff at its store and Kings Lynn, the Plaintiff arranging at its own cost for the transportation of the bean sprouts to Co. Monaghan. The consignment was collected by the Plaintiff from the Defendant's store on the 22nd January 1997 - that is the same day on which the order was placed.

8 In an Affidavit filed on behalf of the Plaintiff in this motion, Eddie Fitzerlad, agrees with the foregoing broad picture but stresses that the Defendant company was fully aware of the business requirements of the Plaintiff which were to use Defendant's frozen foodstuffs for the purpose of the Plaintiff's food processing business and therefore were aware of the need for products that were merchantable and fit for that purpose. The Defendant was obliged to supply bean sprouts which the Plaintiff could use in this way in Ireland and they failed, he says, in this obligation.

DEFENDANT'S SUBMISSIONS

9 Mr. McCann, B.L., submits for the Defendant that Article 5 of the Convention is of no avail to the Plaintiff in the present case.

10 Where relevant, Article 5 provides:-

"A person domiciled in a Contracting State may, in another Contracting State, be sued:"

1. In matters relating to a contract, in the Courts for the place of performance of the obligation in question;

2 ....

3. In matters relating to tort, delict or quasi-delict, in the Courts for the place where the harmful event occurred;"

11 Dealing first with the case sounding in contract, Mr. McCann submits that the place of performance of the obligation in question was England. He says two questions arise in this context, namely, what is the relevant obligation and where is it to be performed?

12 The relevant obligation he submits is to deliver goods of merchantable quality fit for the intended purpose. The Defendant contracted to deliver these goods at its premises in kings Lynn in England. Mr. McCann relies on Handbridge Limited -v- British Aerospace Communications Limited, ( 1993:3:IR:342) where the then Chief Justice, Finlay CJ (page 358), having already noted that the principle laid down in the Convention is that jurisdiction is vested in the Courts of the state of the state of the defendant's domicile, said:-

"... I am satisfied that certain conclusions of principle arise. They are:"

1. The onus is on the plaintiff who seeks to have his claim tried in the jurisdiction of a Contracting State other than the Contracting State in which the defendant is domiciled to establish that such claim unequivocally...