Spielberg v Rowley

JurisdictionIreland
JudgeJustice Finlay Geoghegan
Judgment Date26 November 2004
Neutral Citation[2004] IEHC 384
CourtHigh Court
Date26 November 2004

[2004] IEHC 384

THE HIGH COURT

No.8578P/2004
No. 21 COM/2004
SPIELBERG v. ROWLEY & ORS
COMMERCIAL

Between

VOLKER SPIELBERG
Plaintiff

and

WILLIAM ROWLEY, MARIA ROWLEY, SIMON LAIT AND JEAN LUC YOUNG
Defendants

Citations:

RSC O.12 r26

RSC O.11

RSC O.11 r1(c)

RSC O.11 r1(h)

RSC O.15 r1326

RSC O.19 r28

EC REG 44/2001 ART 22(2)

EC REG 44/2001 ART 6(1)

EC REG 44/2001 ART 2

EC REG 44/2001 ART 3

EC REG 44/2001 ART 4

EC REG 44/2001 ART 5

EC REG 44/2001 ART 6

EC REG 44/2001 ART 7

HANDBRIDGE LTD V BRITISH AEROSPACE COMMUNICATIONS LTD 1993 3 IR 343

BRUSSELS CONVENTION ART 5(1)

EC REG 44/2001 ART 22

LAYTON & MERCER EUROPEAN CIVIL PRACTICE 2ED 2004 625

Abstract:

Practice and procedure - Brussels Convention - Venue - Appropriate venue for determination of claim - Exceptions to general rule that domicile of defendant determines appropriate venue - Object of proceedings - Whether decision of organ of Irish company object of proceedings - Whether court has jurisdiction to hear and determine proceedings against - defendants domiciled outside State - Council Regulation EC 44/2001, article 22(2) - Extra-territorial service - Whether validly effected - Rules of the Superior Courts 1986, orders 11 and 12, rule 26.

Council Regulation EC 44/2001 replaced the Brussels Convention on the recognition and enforcement of judgments in civil and commercial matters as the applicable rules governing proceedings having an extra-territorial dimension within the European Union. Under both instruments, the general rule is that persons are sued in the courts of their domicile. One of the exceptions to that rule is contained in Article 22(2) of the Regulation of 2001, which is analogous to article 5(1) of the Brussels Convention and provides that: “in proceedings which have as their object the constitution, the nullity or the dissolution of companies…, or of the validity of the decisions of their organs, the courts of the Member State in which the company…has its seat [shall have exclusive jurisdiction regardless of domicile].” The first three defendants were directors of two companies which were registered in the island of Nevis and which had previously been registered in Ireland. The first two defendants had been served outside the State with proceedings pursuant to order 11, rules 1(c) and (h) of the Rules of the Superior Courts on the basis that other named defendants had been served within the State. Those other defendants were subsequently released from the proceedings so that at the time of the first and second defendants applying, pursuant to order 12, rule 26 of the Rules of the Superior Courts, for an order setting aside the service of the proceedings on the grounds that the court had no power to permit service thereof pursuant to order 11, the only other defendants joined had all been served outside the State.

The third defendant applied for an order striking out the proceedings as against him on the grounds that the court had no jurisdiction to determine the proceedings pursuant to the Regulation of 2001 as the object of the proceedings was not such as to bring it within the exception outlined in article 22(2) thereof.

Held by Finlay Geoghegan J in setting aside service of notice of the plaintiff’s summons on the first and second defendants and holding that the court did not have jurisdiction to hear and determine the plaintiff’s claim as against them under article 22(2) of the Council Regulation of 2001 that there were no longer any defendants within the jurisdiction and that the Regulation of 2001 had not been relied upon by the plaintiff at the time of the service of the proceedings on the first and second defendants.

That, in determining what the object of proceedings for the purposes of article 22(2) of the Regulation of 2001 were, the principal subject matter of the proceedings first had to be divined by examining the statement of claim and any other pleadings delivered and any facts set out in a grounding affidavit. Applying that principle, the plaintiff failed to discharge the onus of unequivocally establishing that the object of the proceedings was the validity of a decision of the board of an Irish company.

Obiter dictum: that the same principles applied to the interpretation of Council Regulation EC 44/2001 as applied to interpretation of the Brussels Convention.

Reporter: P.C.

1

Justice Finlay Geoghegan delivered on the 26th day of November 2004.

2

This judgment is given in two motions brought on behalf of the first and second named defendants and on behalf of the third named defendant which were heard contemporaneously but which give rise to different considerations and different issues.

Application of first and second named defendants
3

The first and second named defendants by notice of motion issued on the 27 th July, 2004, applied pursuant to O. 12, r. 26 of the Rules of the Superior Courts,1986 or, alternatively pursuant to the inherent jurisdiction of the court, inter alia, for an order setting aside the service of the notice of summons dated 27 th May, 2004, on the grounds that the court had no power to permit service thereof on the first and second named defendants outside of the jurisdiction pursuant to O.11 of the Rules of the Superior Courts, 1986. The first and second named defendants are resident in the Isle of Man.

4

The order of the High Court of the 17 th May, 2004, giving liberty to issue an originating plenary summons for service on, inter alia, the first and second named defendants and giving liberty to serve a notice of the said summons on the first and second named defendants was made in reliance on O. I 1, r. l(c) and (h) of the Rules of the Superior Courts, 1986. Those rules permit service out of the jurisdiction of an originating summons or notice of an originating summons whenever;

"(c) any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or …

(h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction; or"

5

At the time of the application under O. 11, The Registrar of Companies, The Minister for Finance, Ireland and the Attorney General had been joined as fifth to eighth named defendants to these proceedings.

6

On the 10 th November, 2004, immediately prior to the hearing of this application, on an application brought on behalf of the fifth to eighth named defendants, I determined that those defendants were entitled to an order striking them out of the proceedings pursuant to O. 15, r. 13 of the Rules of the Superior Courts, 1986 and O. 19, r. 28 of the Rules of the Superior Courts, 1986.

7

Since the making of that order there is now no person resident within the jurisdiction who is joined as a party to these proceedings. In the circumstances, the present application on behalf of the first and second named defendants must succeed.

8

Counsel for the plaintiff did seek to raise article 22(2) of Council Regulation E. C./44/2001 of 22 December, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, O.J. L012/1 16. 1.2001 and sought to assert that this Court had jurisdiction thereunder to hear and determine the claim as against the first and second named defendants. I ruled that such submission could not now be made in response to the present application on behalf of the first and second named defendants as Council Regulation E. C/44/2001 had not been relied upon at the time of service of the proceedings on the first and second named defendants. Service on the first and second named defendants was effected pursuant to the order of the High Court of the 17 th May, 2004, following an application under O.I 1 of the Rules of the Superior Courts, 1986. The first and second named defendants are now entitled to an order setting aside such service.

Application of the third named defendant
9

The third named defendant is resident in England. These proceedings were served on him in reliance upon the provisions of articles 6(1) and 22(2) of Council Regulation E. C/44/2001. The present application on behalf of the third named defendant is for an order staying or striking out the proceedings as against the third named defendant upon the basis that this court has no jurisdiction pursuant to Council Regulation E. C/44/2001 to hear and determine the proceedings. By reason of the order made to strike out the fifth to eighth named defendants, counsel on...

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