Anthony O'Keeffe (plaintiff) v Top Car Ltd and Grants of Aviemore Ltd (defendants).

Practice and Procedure - Defendant domiciled outside Ireland - Whether actions against both defendants should be heard together - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988 (No 3), section 3 -Brussels Convention, article 6.1

The High Court (before Mr Justice Flood); judgment delivered 2 July 1997.

An Irish court should decline jurisdiction in an action against a defendant who is not domiciled in Ireland unless he is one of a number of defendants in related actions where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. Mr Justice Flood so held in granting the second defendant's application for an order declining jurisdiction in respect of the claim against it and for a consequential order striking out the proceedings as against the second defendant.

Eoin McCullough BL for the plaintiff; Paul Sreenan SC and John Lucey BL for the second defendant.

Mr Justice Flood said that the plaintiff resided in the city of Cork and in July 1993 he had purchased a second-hand car from the first defendant, an Irish registered company trading in Cork. The plaintiff alleged that the defendant was in breach of the terms of the sale, express or implied, in that the vehicle was seriously defective. The second defendant was a company not registered in this jurisdiction which was carrying on business in Scotland. The plaintiff alleged that in 1995, while he was travelling in Scotland, the second defendant had carried out repairs on the car at his request. It was alleged that these repairs were negligently carried out and that the car broke down once more. By virtue of this last break-down serious damage was done to the engine and the car was now in storage in London.

The plaintiff instituted proceedings before the Cork Circuit Court against both defendants. Mr Justice Flood said that there was no doubt that the defendants were domiciled in Ireland and in Scotland respectively. The plaintiff claimed that he was entitled to institute proceedings against both by virtue of section 3 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988, which incorporated the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial matters (the Brussels Convention) into Irish law.

Article 6.1 of the Convention provides:

"A person domiciled in a contracting State may be sued:

(1) where he is one of a number of defendants in the courts of the place where any one of them is domiciled . . . "

Mr Justice Flood said that Article 6.1 had been interpreted by the Court of Justice of the European Communities in Case 189/87, Athanasios Kalfelis v Bankhaus Schroder where it was held that the article applied where the actions brought against the various defendants were related, that is to say where it was expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. The Court of Justice had gone on to say the it was for the national court to verify in each case whether that condition was satisfied.

Mr Justice Flood said that the plaintiff's claim against the first defendant was for breach of contract relating to the condition of the car at the date of sale. The claim against the second defendant in relation to alleged poor workmanship sounded in tort and arose from an entirely different sequence of events which clearly post-dated the contract of sale. There would be nothing irreconcilable in the Cork Circuit Court finding in favour of the plaintiff as against the first defendant and a court in Scotland dismissing a claim by the plaintiff against the second defendant. Accordingly, there was no connection of such a kind that it was expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Mr Justice Flood refused an application by counsel for the plaintiff for a reference to the Court of Justice pursuant to Article 177 of the Treaty of Rome. He stated that the relevant article of the Brussels Convention had already been interpreted by the Court of Justice and the court had explicitly held that it was for the national court to verify in each case as to whether the relevant condition was satisfied. That condition was a question of fact and he held that that condition had not been satisfied by the plaintiff. The request was denied.

Mr Justice Flood made an order declaring that the Cork Circuit Court should decline jurisdiction and that the action against the second defendant should be struck out.

Solicitors: Ernest J. Cantillon & Co (Cork) for the plaintiff; J. W. O'Donovan (Cork) for the second defendant.