Smyth v SAS Sogimalp Tarentaise
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 25 July 2019 |
| Neutral Citation | [2019] IEHC 568 |
| Court | High Court |
| Docket Number | [2014 No. 6746P] |
| Date | 25 July 2019 |
[2019] IEHC 568
THE HIGH COURT
Keane J.
[2014 No. 6746P]
Want of jurisdiction – Interlocutory orders – Strike out proceedings – Defendant seeking interlocutory orders – Whether the courts of Ireland had the general, special or prorogated jurisdiction to hear or determine the plaintiff’s claim
Facts: The defendant, SAS Sogimalp Tarentaise, moved for three interlocutory orders: first, one pursuant to Order 12, rule 26 of the Rules of the Superior Courts (RSC) setting aside the service upon it of the plenary summons by which these proceedings were commenced; second, one declining jurisdiction under Regulation (EC) 44/2001 (the Brussels I Regulation); and third, one striking out the proceedings as frivolous or vexatious (that is to say, bound to fail), pursuant to either O. 19, r. 28 of the RSC or the inherent jurisdiction of the High Court. The plenary summons issued on 1 August 2014. The indorsement of claim identified the claim of the plaintiff, Mr Smyth, as one ‘for damages for malicious prosecution in an action brought against him by the defendant.’ The reliefs sought were ‘€100,000 expended by him in legal costs in the said proceedings’ and ‘damages’, together with interest and costs.
Held by Keane J that, on the facts of this case, in the exercise of the Court’s inherent jurisdiction and of the power conferred by O. 124, r. 1 of the RSC, he did not propose to set aside the service of the summons because it was clear that the defendant was effectively put on notice of the proceedings, although the proceedings were not properly served on it as a matter of law, and because the defendant had suffered no prejudice in seeking to challenge jurisdiction. Having considered the submissions of the parties, Keane J concluded on jurisdiction under the Brussels I Regulation that: first, for the purpose of the general jurisdiction rule under Art. 2 in Section 1, the defendant was domiciled in France, and must be sued in the courts of that Member State; second, the special jurisdiction rule under Art. 5(3) in Section 2 did not apply because the plaintiff had failed to establish that Ireland was the place where the harmful event he alleged occurred; and third, the prorogation of jurisdiction rule under Art. 24 in Section 7 did not apply, because the appearance of the defendant was entered to contest the jurisdiction of the courts in Ireland. Thus, Keane J held that the courts of Ireland did not have the general, special or prorogated jurisdiction to hear or determine the plaintiff’s claim. Keane J held that, in the circumstances in which they had been brought, these proceedings represented an impermissible collateral attack upon the relevant decisions of the French courts and were, in any event, bound to fail, since the plaintiff could not establish that the civil proceedings that he claimed were maliciously instituted and maintained against him in France failed either entirely or at all. For those reasons, had it been necessary to do so, Keane J would have struck out the plaintiff’s action on those grounds also.
Keane J held that he would strike out the plaintiff’s claim for want of jurisdiction.
Order granted.
The defendant moves for three interlocutory orders: first, one pursuant to Order 12, rule 26 of the Rules of the Superior Courts (“RSC”) setting aside the service upon it of the plenary summons by which these proceedings were commenced; second, one declining jurisdiction under Regulation (EC) 44/2001 (“the Brussels I Regulation”) and third, one striking out the proceedings as frivolous or vexatious (that is to say, bound to fail), pursuant to either O. 19, r. 28 of the RSC or the inherent jurisdiction of the court. Thus, for the purposes of this judgment, I will refer to the defendant as the applicant and to the plaintiff as the respondent.
A plenary summons issued on 1 August 2014. The indorsement of claim identifies the respondent's claim as one “for damages for malicious prosecution in an action brought against him by the defendant.” The reliefs sought are “€100,000 expended by him in legal costs in the said proceedings” and “damages”, together with interest and costs.
In accordance with the requirement under O. 4, r. 1A(1) of the RSC, as that rule then stood, to specify the particular provision or provisions of the Brussels I Regulation under which the Court has power to hear and determine the claim raised, the respondent invoked the special jurisdictional rules of Article 5(1) and (3). Article 5(1) deals with claims in contract. As counsel for the respondent acknowledged in the course of argument, it does not apply to the respondent's claim. Article 5(3) provides that a person domiciled in a Member State may be sued “in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”.
It is not disputed that the applicant is a company domiciled in France.
The applicant entered a memorandum of appearance on 18 September 2014. It states on its face that it is “without prejudice and solely to contest the jurisdiction of the court.”
The respondent delivered a statement of claim on 21 June 2016.
Although I have not seen the relevant motion papers or any order of the court, I am given to understand that, on 21 February 2017, the respondent issued or brought a motion for judgment in default of defence, in response to which the court directed the applicant to deliver a defence. The applicant did so on 9 October 2017, having first issued the present motion on 7 July 2017.
In his statement of claim, the respondent pleads, broadly, as follows.
On an unspecified date in the early 1980s, the respondent purchased two apartments in an apartment building in France from the applicant. In 2004, the respondent carried out certain works to those apartments, including the enclosure of part of a balcony.
In 2005, the applicant instituted proceedings against the respondent before the Tribunal de Grande Instance in Albertville, France, to seek the remediation by him of certain works and the restoration of the balcony to its original condition. The case was appealed to the Court of Appeal in Chambéry and, from there, to the Court of Cassation in Paris, which gave judgment on 21 June 2011. In the words of the statement of claim, the judgment of the Court of Cassation, a court of last resort, was given “in a manner adverse to” the respondent, who was required to carry out remediation works and to pay the costs of the proceedings, subject to a daily financial penalty in default.
The respondent did not comply with that order. After an unsuccessful application to the Enforcement Court of the Supreme Court in Albertville, the applicant obtained a judgment on appeal from the Court of Appeal in Chambéry on 4 September 2014, whereby the respondent was directed to pay a penalty of €15,000 and to carry out the remediation works within six months, subject to a daily fine in default of €100 per day thereafter.
The relevant decision and notification of penalty have not been served on the respondent. The respondent has not paid the penalty stipulated or the applicant's legal costs, nor has he carried out the remediation works.
After the decision of the Court of Appeal in Chambéry, the respondent came into possession of original plans for the apartment building that demonstrated that there was no planning permission for the balcony. The respondent showed those plans to the applicant's architect and general manager in late 2015 or early 2016. Either directly or through unspecified servant or agents, the applicant accepted that it had been aware at all material times that it was not possible for the respondent to comply with the orders that it sought against him but had gone ahead with, and persisted in, the prosecution of its legal proceedings, despite that knowledge.
The respondent wrote formally to the applicant on 8 April 2016, drawing those facts to its attention and requesting that it apply to the appropriate French court to strike out the proceedings and vacate the orders that had been made. The applicant has declined to so.
The actions of the applicant caused loss and damage to the respondent because, at considerable cost and inconvenience, he was forced to defend proceedings that, at all material times, the applicant knew or should have known, were fundamentally flawed, and because the applicant has refused to apply to set aside the judgment in its favour and to have the orders it obtained against the respondent vacated.
The respondent provided the following particulars of loss and damage:
(a) legal fees incurred in defending the proceedings from 2005 to date;
(b) reputational damage and damage to his good name; and
(c) inconvenience and distress.
The respondent provided the following particulars of the tortious conduct of the applicant:
(a) Instituting proceedings that it knew or should have known were fundamentally flawed;
(b) maintaining those proceedings and refusing to apply to vacate the orders made in them when placed on notice that the proceedings were fundamentally flawed;
(c) misleading the French courts;
(d) engaging in abuse of process;
(e) engaging in the malicious prosecution of the respondent; and
(f) acting in bad faith, oppressively and prejudicially towards the respondent.
The respondent claims the following principal reliefs, together with interest and costs:
...1. An order for the recovery of his legal costs of the French proceedings;
2. A declaration, if necessary, that the French proceedings were an abuse of process.
3. A declaration that the French proceedings constituted a malicious prosecution of the respondent.
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