Short v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1994 No. 1751P and S.C. No. 174 of 1995]
• Court: Supreme Court

Short v. Ireland

Constance Short and Others

Plaintiffs

and

Ireland, The Attorney General and British Nuclear Fuels plc

Defendants

The Secretary of State for the Environment, Notice Party

[1994 No. 1751P and S.C. No. 174 of 1995]

High Court

Supreme Court

Conflict of laws - Service out of the jurisdiction - British nuclear reprocessing plant allegedly causing pollution of Irish atmosphere and coastal waters - Whether action "founded on a tort committed within the jurisdiction" - Whether defendant a "proper party" - Whether Irish court having requisite jurisdiction to permit service of proceedings out of jurisdiction - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 5, r. 14, sub-r. 1, O. 11, rr. 1 (f), 1 (h), 2, 5, 6 and 8, O. 11A, rr. 1 and 2, O. 124, r. 3 - Convention on Jurisdiction and Enforcement of Judgments, 1968, Articles 1 and 5 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3) s. 4.

Practice and procedure - Service of proceedings out of the jurisdiction - Procedural formalities to be followed - Form and content of grounding affidavit - Manner in which proceedings to be served - Rules of the Superior Courts, 1986, O. 5, r. 14, O. 11, rr. 1 (f), 1 (h), 2, 5, 6, and 8; O. 124, r. 3 - Convention on Jurisdiction and the Enforcement of Judgments, 1968 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988.

Under O. 11 of the Rules of the Superior Courts, the High Court granted leave to the plaintiffs to serve on the third defendant notice of a plenary summons in which declaratory relief and damages were sought based on injuries allegedly suffered, inter alia, from the operation by the third defendant of a publicly funded nuclear reprocessing plant in England.

The plaintiffs served the summons on the third defendant rather than notice thereof.

The third defendant brought a motion to set aside the service on it of the plenary summons on the ground, inter alia that leave to serve it outside the jurisdiction should not have been granted by reason of O. 11A of the Rules of the Superior Courts, the plaintiffs' claim being within the terms of the Convention on Jurisdiction of Courts and Enforcement of Judgments in Civil and Commercial Matters, 1968.

Held by O'Hanlon J., in dismissing the motion, 1, that O. 11A was not applicable to the present proceedings given that some of the forms of relief claimed by the plaintiffs, particularly those of a declaratory nature, did not come within the scope of that order.

Semble: Where the relief claimed against a defendant was outside the scope of the jurisdiction derived from the Act of 1988, the appropriate course for the plaintiff was to fall back upon such rights (if any) as were available to him under O. 11 of the Rules to have the proposed defendant served out of the jurisdiction with notice of the proceedings.

O'Toole v. Ireland [1992] I.L.R.M. 218 considered.

2. That the plaintiffs' action was 'founded on a tort committed within the jurisdiction' within the meaning of O. 11, r. 1 (f) of the Rules, having regard to the place of the alleged damage, the wide definition of the term 'tort' to include all wrongs unrelated to a contract, and to the recognised role of preventative injunctions in the operation of the national tort jurisdiction.

Handelswerkerij G.J. Bier B.V. v. Mines de Potasse d'Alsace S.A. (Case 21/76)[1976] E.C.R. 1735 and Kalfelis v. Bankhaus Schroder, Munchmeyer, Hengst & Co. (Case 189/87) [1988] E.C.R. 5565 applied.

3. That the third defendant was a 'proper party' to the plaintiffs' action against the first and second defendants within the meaning of O. 11, r. 1 (h) of the Rules having regard to the close link between the legal claims being made by the plaintiffs against each of the defendants and the apparent logic of litigating both claims together.

Obiter: Where it is proposed to serve a defendant out of the jurisdiction under O. 11, r. 1 (h) of the Rules, the question whether such defendant would be a 'proper party' to the action against another defendant domiciled or resident within the jurisdiction should be answered on the supposition that both defendants are domiciled or resident within the jurisdiction where the latter defendant has been served.

Massey v. Heynes (1881) 21 Q.B.D. 338 and Gannon v. British and Irish Steampacket Co. Ltd.[1993] 2 I.R. 359, per Finlay C.J. at p. 374 approved.

4. That the plaintiffs' right to seek leave to serve notice of its summons out of the jurisdiction was not lost by the inclusion in the summons of an ancillary claim concerning matters of administrative law.

De Cavel v. De Cavel (Case 120/79) [1980] E.C.R. 731 considered.

5. That the plaintiffs had presented sufficient material to justify the conclusion that they had a good arguable case to merit the granting of leave to serve out of the jurisdiction.

Semble: An applicant seeking leave to serve out of the jurisdiction under O. 11 of the Rules is required to establish that he has a good arguable case.

Seaconsar Far East Ltd. v. Bank Markazi Jomhouri Islami Iran [1994] 1 A.C. 438 considered.

6. That the plaintiffs had not failed in their duty to the Court to make a full disclosure of such information as it reasonably necessary to enable the judge to determine whether the case was a proper one in which to grant leave to serve out of the jurisdiction.

7. That it was preferable that the proceedings be litigated in Ireland rather than England having regard to the comparative cost and convenience of litigating in either jurisdiction.

8. That the affidavits relied upon by the plaintiffs in seeking leave to serve proceedings out of the jurisdiction did not contain the specific averment required by O. 11, r. 5 of the Rules, namely, that in the deponent's belief the plaintiff had a good cause of action. Further, the affidavits relied upon by the plaintiffs in seeking leave to serve proceedings out of the jurisdiction were not correctly titled as required by O. 11, r. 6 of the Rules.

9. That the order of the High Court was defective in that it did not specify the particular paragraph of O. 11 under which it was made, contrary to the requirements of international comity among courts in cases involving service out of the jurisdiction.

Dictum of Kennedy C.J. in Shipsey v. British and South American Steam Navigation Co.[1936] I.R. 65 at p. 83 approved.

10. That the international comity of courts had been offended by the plaintiffs' failure to serve on the third defendant a notice of plenary summons, rather than the summons itself, as required by the order of the High Court.

11. That the third defendant had not complied with O. 124, r. 3, of the Rules since it had failed to give particulars of the several objections intended to be relied upon by it in seeking to have the proceedings of the plaintiffs set aside for irregularity.

12. That all breaches of procedural requirements contained in the Rules, save that concerning the service of the summons, would, in the exercise of the court's judicial discretion, be overlooked.

The third defendant appealed to the Supreme Court from the judgment and order of the High Court refusing to set aside the leave to serve notice of the plenary summons outside the jurisdiction. The plaintiff appealed to the Supreme Court from the judgment and order of the High Court in so far as it ordered re-service of notice of the proceedings.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Blayney, Denham and Barrington JJ.), in dismissing the appeals, 1, that the case for service out of the jurisdiction under O. 11 had been made out and correctly endorsed by the High Court.

2. That the invocation of Irish jurisdiction in the instant case did not amount to an interference with the legislative and judicial powers of another sovereign State (the U.K.) given that the subject matter of the present litigation related to the results in Ireland of activities carried on in the U.K. rather than to the activities themselves.

Per curiam: It was difficult to see how any provision of English law could make legal in Ireland injury or damage which would otherwise be tortious under Irish law.

3. That the present case raised or could raise complex and difficult questions of significance which should properly be left for resolution by the trial judge.

Cases mentioned in this report:—

De Cavel v. De Cavel (Case 120/79) [1980] E.C.R. 731; [1980] 3 C.M.L.R. 1.

Gannon v. British and Irish Steampacket Co. Ltd. [1993] 2 I.R. 359.

Handelswerkerij G.J. Bier B.V. v. Mines de Potasse d'Alsace S.A. (Case 21/76) [1976] E.C.R. 1735; [1977] 1 C.M.L.R. 284.

Kalfelis v. Bankhaus Schroder, Munchmeyer, Hengst & Co. (Case 189/87) [1988] E.C.R. 5565.

Marleasing AS v. La Comercial Internacional d'Alimentacion SA (Case 106/89) [1990] E.C.R. I-4135; [1992] 1 C.M.L.R. 305.

Massey v. Heynes (1881) 21 Q.B.D. 338; 57 L.J.Q.B. 468; 59 L.T. 470; 26 W.R. 834.

O'Toole v. Ireland [1992] I.L.R.M. 218.

Porzelack KG v. Porzelack (UK) Ltd. [1987] 1 W.L.R. 420; [1987] 1 All E.R. 1074.

R. v. Secretary of State for the Environment, ex p. Greenpeace [1994] 4 All E.R. 352.

Seaconsar Far East Ltd. v. Bank Markazi Jomhouri Islami Iran[1994] 1 A.C. 438; [1993] 3 W.L.R. 756; [1993] 4 All E.R. 456; [1994] 1 Lloyd's Rep. 1.

Shipsey v. British and South American Steam Navigation Co. [1936] I.R. 65.

Trident International Freight Services v. Manchester Ship Canal Co.[1990] B.C.L.C. 263; [1990] B.C.C. 694.

Motion on Notice.

The facts have been summarised in the headnote and are set out in the judgment of O'Hanlon J., infra.

The Rules of the Superior Courts, 1986 provide, inter alia:—

"Order 5, r. 14:

• (1) Save as is otherwise provided for in these Rules, no summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without leave of the court.

• (2) An originating summons to which Order 11A, rule 2 applies and...