Jurisdiction EU Procedure

Commencement of proceedings

Where the basis of the court’s jurisdiction is the Brussels 1 Regulation, the Brussels Convention or the Lugano Convention, a statement must be endorsed on the summons (or notice of summons) that the court has power to hear and determine the claim. It  should specify the provision of the Regulation or Convention relied on; It should state that no proceedings have been pending between the parties in any of the relevant states.

In consumer, employment and certain insurance cases, specific indorsements are required. The indorsement of claim must be sufficient so that the parties know the case they have to meet. The defendant is entitled to sufficient particulars in detail to enable him to decide what he is obliged to pay.

In 2019 the Supreme Court held in a case seeking summary judgement that the pleadings were insufficient in that they lack the requisite detail regarding the liquidated (fixed sum) claimed. Sufficient detail must be given so that it is obvious to a reasonable person to how the sum is calculated. Account may be taken of documentation sent to the defendant before the commencement. It may be necessary to refer to such correspondence if it is to be relied on for the purpose of specifying the claim.

Continuing interest and continuing rent may be claimed after commencement of the proceedings where they are due.

The summons is issued by the Central Office. The draft summons stamped with the appropriate court fee and a number of copies are brought to the Office. It is sealed with the seal the High Court marked with a record number and returned to the person presenting it for service. The summons is entered in a cause book.

2019 rules amend the provisions regarding renewal of summons which have not been served within 12 months. Applications for leave to renew are made to the Master who may give leave to renew for up to 3 months,  if satisfied that reasonable efforts have been made to serve the defendant or for other good reason.

Alternatively, the court may grant leave to renew for a period of 3 months if satisfied there are special circumstances which justify the exception. The application is made by way of a unilateral ex parte application.

Where it is made ex parte, the defendant before entering appearance may bring a motion to set aside the order renewing the summons. The application should be brought promptly.

 

A person who fails to serve a summons within the 12-month period may issue a fresh summons,  subject to the provisions to the Statute of Limitations.

 

Order 11A of the Rules of the Superior Courts deal with service under the Brussels 1 Regulation (recast). Service of the summons or notice of summons is permitted outside the jurisdiction without the leave of court in the circumstances set out in Brussels 1 Regulation (recast). It must be a claim which the court has power to hear and determine under that Regulation. There must be no proceedings regarding the same matter pending between the parties in another EU state.

 

The summons must be endorsed with a statement that the court has jurisdiction under the Brussels 1 Regulation specifying the particular provisions under which the court should take jurisdiction. There must also be a statement that no proceedings between the parties concerning the same matter are pending in another state.

 

In cases relating to employment, certain insurance and consumer claims the summons must have a statement that the defendant has a right to contest the jurisdiction of the court and if  wishes to do so he should enter an appearance to contest jurisdiction in accordance with the specified rule. An indorsement in identical terms must be included in the statement of claim.

 

The failure to include the indorsement may not be fatal to the proceedings if the court is satisfied that it is properly seised of  the case. Court leave to amend may be required and may be refused if the defendant is prejudiced.

 

Parties to a contract may agree the place and mode of service. Under these circumstances it may be deemed duly served.

 

A summons or notice of summons served under Order 11A.  In a case where the person is known or believed not to be an Irish citizen, notice of the summons rather than the summons itself is served. There is a 5 week period for entry of an appearance.

Appearance

Generally entry of an unconditional appearance confers jurisdiction on the state in which proceedings are commenced.

Where the court would not otherwise have jurisdiction under Brussels Regulation they may acquire it where the defendant submits to jurisdiction. This may be done where the defendant enters an unconditional appearance before that court. It does not apply to a conditional appearance  to contest jurisdiction. It does not apply to cases where the Brussels 1 Regulation provides for exclusive jurisdiction.

 

An appearance can be entered for the  purpose of contesting jurisdiction. This is so notwithstanding that the rules provide for an application to set aside service prior to entering appearance. This does not extend to claims later added by the plaintiff. If an appearance is entered by mistake the court has discretion to allow a conditional appearance to be made instead.

 

Pre-Trial Protective Measures

In the context of pending litigation, it is generally possible to obtain certain pre-trial orders.  These include orders freezing the position pending determination of the outcome of the case, orders for discovery of documents and inspection, orders not to move assets from the jurisdiction and orders to enter and search property.

The EU rules provide that an application may be made in one state for protective measures that may be available under the law of that state, even if another EU state has jurisdiction in relation to the matter itself.  The legislation applies, provided the rights are civil or commercial.

It applies to orders that are designed to preserve a position in one state so as to safeguard rights that are the subject of litigation in another state.  It does not apply to orders seeking interim payment or examining witnesses to determine the merits of a dispute.  It does apply to freezing injunctions.

Protective Measure Procedure

The European Union (Civil and Commercial judgement) Regulations 2015 provide for the grant of provisional  measures including protective measures where  proceedings have been commenced in an EU  state and the subject is within the scope of the Brussels 1

Regulation. The application is made in a unilateral application to the High Court. It must specify the nature of the proceedings or intended proceedings the state in which the proceedings have been commenced and the relevant provisions by which the court of that other EU state has jurisdiction are assumed jurisdiction.

The court which has jurisdiction under the Brussels 1 Regulation (recast) has jurisdiction in relation to provisional and protective measures as may be necessary. By way of exception the court may grant provisional or protective measures available under national law on application of one of the parties

This is subject to the condition that there must be a real connection with the subject matter of the measures sought and the territorial jurisdiction of the court before which they are sought. Any assets to which the interim measures apply must be within the jurisdiction concerned.

The court ordering such provisional and protective measures must take account of the need to impose conditions and stipulations to guarantee their protective and provisional nature. This includes in particular that the applicant may be required to give an undertaking or guarantee to pay the costs if the proceedings are unsuccessful.

Duty of Court

The Brussels 1 Regulation (Recast) places a duty of the court to examine its own jurisdiction by itself of its own motion. Where another court has exclusive jurisdiction the court should give effect to it without waiting for the matter to be raised by the parties. Where no appearance is entered the court is obliged to make a declaration of its own motion that does not have jurisdiction if this is so.

 

If a court is seised of the matter, it must stay the proceedings unless satisfied the defendant has received the documents in time to allow it to prepare a defence

 

The general principle is that the court first seised of jurisdiction has priority where more than one jurisdiction is available. A court is seised of proceedings when the commencing document is lodged with the court. Where this predates documentation being lodged, a receipt of service causes the court to be seised of the proceedings. Where however the plaintiff does not take the further necessary steps the court is not seized.

 

Courts are to decline jurisdiction and defer to the court first seized where the claim comes within the exclusive jurisdiction of the courts of more than one member state. The matter must be determined as quickly as possible. Upon request by a court seized of the dispute any other court seized must without delay inform the former court of the date it was seised.