Short v Ireland
| Jurisdiction | Ireland |
| Judge | O'Hanlon J., |
| Judgment Date | 30 March 1995 |
| Neutral Citation | 1996 WJSC-HC 2385 |
| Docket Number | No. 1751p/1994 |
| Court | High Court |
| Date | 30 March 1995 |
1996 WJSC-HC 2385
THE HIGH COURT
BETWEEN
AND
AND
Citations:
PORZELACK KG V PORZELACK (UK) LTD 1987 1 AER 1074
TRIDENT INTERNATIONAL V MANCHESTER SHIP CANAL 1990 BCLC 263
RSC O.11A
RSC O.11 r2
RSC O.11 r6
RSC O.11 r8
RSC O.124 r3
RSC O.11
SHIPSEY V BRITISH & SOUTH AMERICAN STEAM NAVIGATION CO 1936 IR 65
EEC DIR 80/836 ART 6(a)
EEC DIR 84/467 ART 2
EEC DIR 85/337
JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S4
JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1993 S4
RSC (NO 1) 1989 SI 14/1989
RSC O.5 r14
O'TOOLE & GPA GROUP V IRELAND 1992 ILRM 218
BRUSSELS CONVENTION 1968 TITLE I ART 1
ACCESSION CONVENTION 1978
ACCESSION CONVENTION 1982
ACCESSION CONVENTION 1989
RSC O.11 r1(f)
RSC O.11 r1(h)
BIER V MINES DE POTASSE DALSACE 1976 ECR 1735
KALFELIS CASE 1988 ECR 5565
CIVIL LIABILITY FOR TRANSFRONTIER POLLUTION (1993) 101–108
DICEY & MORRIS CONFLICT OF LAWS (1993) 324
MASSEY V HEYNES 1888 21 QBD 330
GANNON V B & I STEAM PACKET LTD 1993 2 IR 371
JENARD REPORT OJ C 59/1
KERAMEUS REPORT OJ C 59/10 PARA 28
DE CAVEL-BRUEMMER V DE CAVEL 1980 ECR 731
SRACONSAR V BANK MARKAZI 1994 1 AC 438
TREATY OF ROME ART 189
R V SECRETARY OF STATE FOR THE ENVIRONMENT & ORS EX PARTE GREENPEACE LTD & ANOR 1994 4 AER 352
RSC O.5 r14(2)
RSC O.11 r1
BRUSSELS CONVENTION 1968 ART 5.3
BRUSSELS CONVENTION 1968 ART 5.1
SCHLOSSER REPORT PARA 134
EUROPEAN CONVENTION ON JURISDICTION & ENFORCEMENT OF JUDGMENTS IN CIVIL & COMMERCIAL MATTERS 1968
ATOMIC ENERGY ACT 1971 (UK)
RSC O.11 r1(1) (UK)
RSC O.11 r4 (UK)
LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA V MARLEASING 1990 1 ECR 4135
TREATY OF ROME ART 5
Synopsis:
PRACTICE
Parties
Joinder - Propriety - Defendant - Foreigner - English company - Alleged anticipated escape of radio-active material - Defendant English company owned by British Government - Whether company a necessary or proper party to action - Alleged breach of duty by Ireland and the Attorney General - English company a necessary or proper party - (1994/1751 P - O'Hanlon J. - 30/3/95)- [1996] 2 IR 188
|Short v. Ireland|
PRACTICE
Service
Summons - Service abroad - Leave - Order - Validity - Alleged anticipated escape of radio-active material - Defendant company owned by British Government - Whether company a necessary or proper party to action - Alleged breach of duty by Ireland and the Attorney General - Service of plenary summons effected on defendant company outside jurisdiction pursuant to leave - Whether sufficient information furnished to court when leave sought - Motion to set aside service - Leave affirmed but plaintiff directed to serve notice of plenary summons on defendant company - Rules of the Superior Courts, 1986, orders 11, 124 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, ss, 3, 4 & first schedule, article 5.3 - (1994/1751 P - O'Hanlon J. - 30/3/95) [1996] 2 IR 188
|Short v. Ireland|
WORDS AND PHRASES
"Necessary or proper party"
Summons - Service - Abroad - Leave - Grounds - Alleged anticipated escape of radio-active material - Defendant English company owned by British Government - Whether company a necessary or proper party to action - Alleged breach of duty by Ireland and the Attorney General - English company a necessary or proper party - (1994/1751 P - O'Hanlon J. - 30/3/95) - [1996] 2 IR 188
|Short v. Ireland|
An Order was made in this case by Mr. Justice Carney on the 22nd March, 1994, giving leave to serve Notice of the Plenary Summons herein on the Third-Named Defendants, British Nuclear Fuels PLC, out of the jurisdiction at the registered office of the said Defendant at Risley, Warrington, Cheshire, England. In response, the said Defendant entered a qualified appearance for the purpose only of contesting the validity of the Order which had been made giving leave to serve out of the jurisdiction and also the validity of the service of the proceedings.
This was followed up by service of a Notice of Motion dated the 22nd April, 1994, giving notice of the said Defendant's intention to apply to the High Court for an Order setting aside the service of the Plenary Summons, and discharging the Order of the 22nd March, 1994, authorising service of notice of the Summons herein on the said Defendant.
This application came on before me in the month of December, 1994, and after a hearing which lasted six days, I reserved judgment in the matter. Before embarking on my decision on the issues which have been raised in the course of argument I feel that it is appropriate to make some general comments in relation to the application.
I am indebted to Counsel who have appeared for the Plaintiffs and also to Counsel representing the various Defendants in the case, for the preparation and research which has been involved in relation to the application and the reply thereto, and also for the manner in which the material of their submissions has been organised and presented to the Court.
Nevertheless I feel that what was said by Sir Nicholas Browne-Wilkinson V-C in the case ofPorzelack KG v Porzelack (UK) Ltd, (1987) I AER 1074, and quoted with approval by Nourse LJ in the later case ofTrident international v Manchester Ship Canal, (1990) BCLC 263, in relation to applications for security for costs, is relevant in relation to interlocutory applications generally. He said (at p. 1077):
The matters urged before me have spread over a fairly wide field. First there have been attempts to go into the likelihood of the plaintiff winning the case or the defendant winning the case.... This is the second occasion recently on which I have had a major hearing on security for costs and in which the parties have sought to investigate in considerable detail the likelihood or otherwise of success in the action. I do not think that is a right course to adopt on an application for security for costs. The decision is necessarily made at an interlocutory stage on inadequate material and without any hearing of the evidence. A detailed examination of the possibilities of success or failure merely blows the case up into a large interlocutory hearing involving great expenditure of both money and time. Undoubtedly, if it can clearly be demonstrated that the plaintiff is likely to succeed, in the sense that there is a very high probability of success, then that is a matter that can properly be weighed in the balance. Similarly, if it can be shown that there is a very high probability that the defendant will succeed, that is a matter that can be weighed. But for myself I deplore the attempt to go into the merits of the case unless it can be clearly demonstrated one way or another that there is a high degree of probability of success or failure.
Purchas LJ, the other member of the Court of Appeal inTrident,also associated himself with the reference to the views expressed by Sir Nicholas Browne-Wilkinson V-C. He said:
Interlocutory proceedings should not be allowed to develop into full-scale but prematurely litigated trials. If and in so far as the respective merits of the competing parties play a part, it should only be on an apriori basis in the clearest possible cases, where it can be shown that on any basis there is a high probability of success or failure accordingly. I agree that the present development, as it appears to be, of litigating at great length the merits on interlocutory proceedings of this nature is to be deplored and should be discouraged by judges and masters dealing with the matters at first instance.
Nourse LJ complained of a hearing inTrident which lasted for four days and involved documentation filling four substantial ring-binder files and running to more than 1,250 pages. The present application to set aside an Order giving leave to serve out of the jurisdiction ran for six days, and while I have not embarked upon a count of the pages I can state that the documentation provided for the assistance of the Court appears to be close enough to 15 kilograms in weight. I feel that a great deal of time and expense could be saved by a tighter and more disciplined approach to applications of this nature, and the procedure adopted before the European Court of Justice might serve as a model in this respect.
I now propose to consider the application to set aside under the various headings which were referred to in the course of the hearing. They can be listed as follows:-
1. Non-compliance with the Rules of the Superior Courts.
2. Want of Jurisdiction.
3. Want of Merits.
4. Duty ofUberrima Fides.
5. Principle ofForum Conveniens.
The application, although madeex parte, was apparently at hearing before Mr. Justice Carney on two days, 21st and 22nd March, 1994. The Order of Court refers only to two grounding affidavits, those sworn by James MacGuill and John Henry Large, but I understand that the Judge also had before him the draft Statement of Claim, and a lengthy, written legal submission, entitled "Why not Order 11A?". It also would appear to be the case that, although not referred to in the Court Order, further affidavits sworn by Dr. Mary Grehan on the 21st March, 1994, and by Constance Short and James MacGuill on the 22nd March, 1994, were also opened to the Court.
Accordingly, the Plaintiffs” proposed case against the Defendants was outlined in considerable detail but the Defendants contend that -
(a) no affidavit was sworn stating that in the belief of the deponent the Plaintiffs have a good cause of action or establishing a sufficient basis for believing that the...
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