Stryker Corporation trading as Stryker Howmedica v Sulzer Metco AG
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 07 March 2006 |
| Neutral Citation | [2006] IEHC 60 |
| Court | High Court |
| Docket Number | [No. 9072P/2003] |
| Date | 07 March 2006 |
BETWEEN
AND
[2006] IEHC 60
THE HIGH COURT
CONFLICT OF LAWS
Jurisdiction
Lugano Convention - Contract - Exclusive jurisdiction clause - Consensus between parties - Defendant domiciled abroad - Place of performance of obligation - Onus on plaintiff - Whether Ireland place of performance of obligation in question -Whether Irish courts had jurisdiction to determine proceedings - Canada Trust Company v Stolzenberg (No 2) [2002] 1 AC 1distinguished; Case 24/76 Estasis Salotti diColzani Aimo e Gianmario Colzani v Rüwa Polstereimaschinen GmbH [1976] 3 ECR1831 approved; Holfeld Plastics Ltd v ISAPOMV Group Spa (Unrep, Geoghegan J,19/3/1999), Viskase Limited v Paul Kiefel GmbH [1999] 1 WLR 1305 and Handbridge Ltd v British Aerospace Communication Ltd [1993] 3 IR 342 followed - Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988, articles 2, 5(1)and 17(1) -Rules of the Superior Courts 1986 (SI 15/1986), O 12, r 26 - Jurisdiction of Courts and Enforcement of Judgments Act 1998 (No 52), s 18 - Relief refused (2003/9072P - O'Neill J - 7/3/2006) [2006] IEHC 60 Stryker Corp v Sulzer Metco AG
Facts: The plaintiffs purchased a machine from the defendants, a Swiss company, which subsequently exploded and caught fire. The plaintiffs instituted proceedings against the defendants alleging negligence and breach of contract. The defendants asserted that the plaintiffs had accepted its general conditions, including a clause, conferring sole and exclusive jurisdiction on the courts of the canton of Aargau, Switzerland. The defendants sought to set aside service of the proceedings.
Held by O' Neill J that the defendants had failed to discharge the onus of demonstrating that was consensus between the parties on the inclusions of the exclusive jurisdiction clause pursuant to Article 17 of the Lugano Convention. The place of performance of the contract for the purposes of Article 5(1) of the Convention was Cork and so the plaintiffs were entitled to sue the defendants in the Irish courts.
Reporter: E.F.
RSC O.12 r26
LUGANO CONVENTION ART 17(1)
SALOTTI v RUWA POLSTEREINASCHINEN GMBH 1976 ECR 1831
GALERIE SEGOURASPRL v SOCIETE RAHIN BONAKDARIAN 1976 ECR 1851
CANADA TRUST COMPANY v STOLZENBERG NO2 2002 1 AC 1 2000 3 WLR 1376 17/10/2000 TLR
HOLFELD PLASTICS LIMITED v ISAP OMV GROUP SPA UNREP HIGH COURT GEOGHEGAN 19.3.1999 2000/20/7660
LUGANO CONVENTION ART 5(1)
LUGANO CONVENTION ART 2
JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1998 S18
LUGANO CONVENTION ART 6
CONSTITUTION ART 40.1
LUGANO CONVENTION ART 5(3)
DE BLOOS PLR v BOUYERSA 1976 ECR 1497
HANDBRIDGE LTD v BRITISH AEROSPACE COMMUNICATIONS LTD 1993 3 IR 342
VISKASE LTD v PAUL KIEFEL 1993 3 ALL ER 362 1999 1 WLR 1305
JUDGMENT of O'Neill J. delivered the 7th day of March, 2006.
The defendants in this motion herein dated 3rd September, 2003, seek an order pursuant to the O. 12 r. 26 of the Rules of the Superior Courts or alternatively pursuant to the inherent jurisdiction of this court setting aside the service of these proceedings on the defendant on the grounds that the contract (if any) on which the plaintiff sues in these proceedings was the subject of a clause conferring sole and exclusive jurisdiction to hear disputes howsoever arising between the parties, on the courts of the canton of Aargau, in Switzerland and as a consequence this Court does not have a jurisdiction to hear and determine the plaintiffs claim against the defendant.
The plaintiffs statement of claim which was delivered on the 30th September, 2003, reveals that the plaintiffs claim that a machine purchased by the plaintiffs from the defendants and delivered in October, 2000, to the plaintiffs exploded and caught fire on the 4th July, 2001, when the machine was being cleaned and as a consequence of which the plaintiffs claim to have suffered very significant losses and damage which they say were caused by the breach of contract of the defendants and also the negligence, breach of duty and breach of statutory duty and negligence misrepresentation of the defendants.
The facts relevant to the issues that arise in this motion are to be found in the several affidavits sworn herein and are as follows.
The defendants are a limited liability company incorporated in Switzerland and are a subsidiary of another Swiss company known as Sulzer AG. The plaintiffs are a limited liability company incorporated in Ireland and engage in the business of manufacturing orthopaedic implants incorporating elements made from titanium. These proceedings concern the design, manufacture and the supply by the defendants to the plaintiff of a Titanium Arc Spray Coating System (the "machine") for use by the plaintiffs at its plant in Cork.
Negotiations between the plaintiffs and defendants commenced in January of 1999 when on the 4th January, a confidentiality agreement was entered into between these parties. Subsequent to this, the defendants submitted three quotations, the first being quotation No. S99013-HE, on the 19th January, 1999. A revised quotation No. SS99013A-He, was submitted by the defendants on the 30th March, 1999 and the final quotation bearing No. S 99013C-He, was submitted on the 6th July, 1999. All of these quotations stated that they were to be subject to the defendants general conditions of contract and these general conditions were enclosed with the latter two quotations. These general conditions of the defendants inter alia contained what may be described as an exclusive jurisdiction clause in the following terms:
19.1 The place of jurisdiction for both the customer and the supplier shall be at the registered office of the supplier.
The supplier shall however be entitled to sue the customer at the latter's registered address.
19.2 The contract shall be governed by Swiss substantive law."
On the 29th September, 1999, the plaintiffs sent the defendants a "Letter of Intent" which is in the following terms:
"Letter of Intent
Dear Valentin,
This letter confirms our intention to place an order with you for an automatic inert gas arc wire coating system, generally in accordance with your offer S99013C-He of July 6th, 1999 and subsequent discussion.
As the completion of the validation work and the preparation of the detailed purchase conditions will take some more time we would request that Sulzer Metco commence immediately with the detailed engineering work and the planning for the delivery of the system.
In case the system for reasons which are not apparent at the moment, is not purchased by Stryker Ireland Limited, we will reimburse Sulzer Metco for the engineering and planning work carried out. The amount to be spent for such engineering and planning work is limited to CHF50,000.
Additional expenses for material purchasing, capacity planning etc. are explicitly excluded from the scope of this letter of intent."
On the 8th October, 1999, the defendants wrote to the plaintiffs seeking a formal purchase order so that works could commence in order to achieve the quoted delivery time of nine months. A further letter of the 5th November, was sent by the defendants to the plaintiffs again seeking the purchase order.
On the 11th November, 1999, the plaintiffs faxed to the defendants five sheets and here the controversy in the case begins. The first of these sheets was the fax enclosure sheet the second sheet or document was the purchase order being order No. 030155. This is dated the 10th November, 1999 and it orders one inert gas wire arc coating system as detailed in attachment 1 for the unit price of SFR1,347,320. On it is inscribed the following:
"Delivery xworks, Wohlen on August, 10th, 2000."
The order is signed by P. Forrestal with the date of 10th November, 1999, added to the signature.
The third sheet in this fax communication is a letter dated 11th November, 1999, from Pat Forrestal, General Manager of the plaintiff to Valentin Vogt of the defendants, this letter reads as follows:
"Dear Valentin,"
Attached herewith for your attention please find purchase order No. 0155 and attachment No.; 1.
If you have any queries please contact me.
Kindest regards,
Yours sincerely,
Pat Forrestal
General Manager."
The next two sheets in the fax communication are what has previously been described as "Attachment No. 1". As this document is of great importance to the case, I quote the textual part of it in extenso. It is as follows:
Sulzer Metco Purchase Order û Arc Deposition System
To design, supply, commission and validate an automatic inert gas wire coating system in accordance with the Sulzer Metco offer S99013C-HE unless varied below and subsequent discussions with Stryker representatives.
The system shall be constructed to safely and efficiently coat a range of Femoral Stems and Acetabular Cups as tabulated below, to meet the requirements of Stryker Specification IMS0133 for Arc Deposited Titanium Coating Composition and Thickness and all relevant appearance criteria advised by Stryker and illustrated by reference samples as provided to Sulzer Metco .....
The scope of supplies shall include all designs, machinery and equipment, fixtures, masking, specialist operational and maintenance tools, technical information and initial consumables necessary to provide Stryker with a fully validated and operational system.
The design and construction shall be carried out so as to...
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