The rules set out in other chapters regarding EU disputes apply only when the conditions in them are satisfied.  There is generally a dispute between EU based parties. Where the EU rules don\’t apply the traditional common law rules apply.  These are quite different in that they are more discretionary and less mandatory.

The EU rules do not apply where the defendant is not domiciled in an EU State or where rules do not allot jurisdiction in a particular way. The traditional rules also apply where there are no EU rules do not apply.

Under the traditional rules the Court has jurisdiction:

  • If the person is physically present (although the court may stay (suspend) proceedings on the basis another court is more appropriate).
  • The defendant submits to the jurisdiction.
  • One of the court rules bases applies.

Outside of the EU rules, a person who is served while in Ireland may strictly be subject to the jurisdiction of Irish courts.  This may simply be on the basis of temporary presence.  If, however the individual is induced fraudulently to come to Ireland the claim would be struck out as an abuse of process. If Ireland is not the appropriate jurisdiction it may stay the proceedings.

A company with a branch or establishment in Ireland may be sued in respect of the business of that branch in Ireland.  There is an obligation to file branch information with the Companies Office.  See the chapter on branch disclosure.  If the company fails to provide the requisite branch information, it may be sued by posting a claim form to any place of business established by it.

A person may be sued by service of the court claim form while he is physically present in the country.  However, the dispute may have little or no connection with Ireland.  If the particular court is not the appropriate or suitable court, the Court may refuse to hear or stay/ freeze the proceedings.

If the defendant submits to jurisdiction this is generally sufficient to confer jurisdiction.  Any steps taken to defend the claim on the merits will constitute submission to jurisdiction.  If the defendant appears to contest jurisdiction, this is not submission.

The challenge to jurisdiction must be made prior to submission.  Once the defendant has submitted, he cannot change his mind and subsequently apply on the basis that the Court is not the appropriate one.

Where a contract contains a clause providing for Irish jurisdiction this by itself will not be submission to jurisdiction. If the agreement contains a clause providing for Irish jurisdiction and a method for service, then this may cause him to deem to have submitted to jurisdiction.  If there is no clause regarding process service, it is not a submission.  There may however be jurisdiction on the basis of the EU rules or a discretionary basis.

The common law rules allow for service of claims outside Ireland with the court’s prior consent.  This is in contrast to the EU rules. Once the relevant criteria are satisfied under the EU rules, the court’s consent is not required.

Under the common law rules anybody may be served without the court’s consent within the jurisdiction. See above.

Under the common law rules, there must be a connection between the claim and Ireland.  The Court has significant discretion in terms of permission.  It must be satisfied that Ireland is the proper place in which to bring the claim.  The broad criteria are as follows:

  • There must be a serious claim which requires to be tried.
  • The claim must fall within one of the relevant Court rules (see below).  There must be at least an arguable case that the dispute falls within those rules.
  • The Court must be satisfied that Ireland is the appropriate forum for deciding interests of the parties and of justice.  The question is one of appropriateness having regard to the entire circumstances.  This would include the nature of the dispute, the issues involved, local knowledge, availability of witnesses and their evidence and expense.

In an application for permission to serve the process abroad the burden is on the claimant to establish Ireland is the appropriate forum. The Courts consider where the centre of gravity of the dispute is.  If for example a claim in tort involves an accident which occurred in Ireland, this is likely to be Ireland. The Court may give permission to proceed even if the dispute is more closely connected with another jurisdiction if it can show that justice would not be done abroad.

The defendant may be entitled to contest jurisdiction and apply to have the service of the process set aside.  This is not the same as a stay of proceedings in the above types of case.  In the latter case, the burden would remain on the defendant to show that another forum is more appropriate.  In the former case (where served abroad) the burden is on the claimant to show that Ireland is the appropriate forum.

The Court rules provide for a number of types of case. The following are the categories of case where the Courts may assume jurisdiction in a claim made in respect of a contract. The assumption of jurisdiction is not automatic.

  • A contract made in Ireland. Generally the contract is where the act of acceptance occurs.  In the case of post, it may be where acceptance is posted.
  • Where the contract is made through an agent trading or residing in Ireland. This basis may apply even if the Irish based agent does not conclude a contract for the foreign based principal.  It also applies to an agent in Ireland who solicits an order from Irish customers and sends them to the principal abroad who then enters the contracts.
  • Contracts governed by Irish law
  • Contracts containing a term conferring Irish Courts with jurisdiction
  • An application for a declaration that a contract does not exist where the contract would fall in one of the above criteria if it did exist.

Breach of Contract

Where the breach of contract occurs in Ireland, a court may assume jurisdiction.  A breach includes where the obligation is not performed where it was required to be performed in Ireland or if defective performance happened in Ireland.  Similarly if the contract is repudiated this may have happened in Ireland and be a basis.

In the case of claims on tort /civil wrongs permission may be. anted on the basis that the loss or damage was sustained with Ireland or where it resulted from an act committed within Ireland.

The Court may assume jurisdiction where significant damage has occurred in Ireland and substantial and vexatious acts have been committed in Ireland where the wrongful act and damage are suffered in different jurisdictions.

Where damage results in more than one jurisdiction, for example with defamation, the person may claim in Ireland only for the damage suffered in Ireland.

In a claim based on Restitution, jurisdiction may be assumed where the act arose within Ireland.  Where restitution is founded on the discharge of a contract the above mentioned provision (void contract) would be likely to apply.

Where there are multiple defendants, permission may be granted to serve process outside the jurisdiction.  If there is a defendant within the jurisdiction, there is a claim which is reasonable to be tried within Ireland and it is necessary to serve on a person abroad who is a necessary and proper party to the claim, the second defendant may be served even though the case would not otherwise come within the rules.

Each defendant is regarded as necessary and proper when the claims against them arise out of the same series of transactions or involve common questions of factual disputes. If a claim against the first defendant is only brought as a pretext to get the second foreign defendant before an Irish Court, the Court should refuse permission.

Where third-party proceedings against a third party who is a necessary and proper party to the claim similar provisions apply. The Court exercises care and caution and practical considerations in these types of cases.

There are many other bases on which an Irish Court may assume jurisdiction including:

  • Claims in relation to property in the jurisdiction.
  • Claims based against a person domiciled in Ireland.
  • Claims to enforce foreign judgments.
  • Claims in respect of taxes.
  • Claims under various legislation.

Courts may stay proceedings on the basis that, but Ireland is not the appropriate Court.  There is a similar but more precise provision in cases under the European Union rule.  With the non-European Union rules the position is much more discretionary.

Where proceedings are commenced in Ireland on the basis of serving the defendant while present or seeking the Court\’s permission to serve abroad, the Court’s discretion applies.  The fundamental principle is to identify the court where the case is most suitably tried in the interests of the parties and for the ends of justice.  The Courts should not pronounce on the advantages and disadvantages of the relevant legal systems.  Such comparisons are regarded as invidious and contrary to the general principle of international mutual respect by Courts.

The defendant may satisfy the court that there is another court having competing jurisdiction which is clearly and distinctly more appropriate. The Court considers whether the Irish Court or the foreign one is the most appropriate forum.  It will have regard to the connecting factors, and which has the most real and substantial connection with the dispute. Relevant factors include

  • the law governing the dispute,
  • where the parties reside and carry on business,
  • convenience and expense,
  • availability of witnesses.

Every case depends on its particular circumstances.  The factors that may be appropriate in one case would not be appropriate in another.  Where the parties are not resident and all the evidence is abroad, Ireland is unlikely to be the appropriate Court.  If proceedings are already pending abroad this will add significantly to the weight that the foreign jurisdiction is the appropriate one.

Unlike the EU rules, the first come first served approach is much less significant.  Where, for example, proceedings are started in another jurisdiction a few days earlier this would be of little to no significance.

Where there is multiple parties, the Court will have regard to the desirability of them all being resolved in a single proceeding even if Ireland was not the appropriate party.

If there are multiple claims which would be more conveniently brought in Ireland than in a foreign jurisdiction, then this may tip the balance in favour of Ireland. Another factor in terms of convenience is whether other proceedings exist between different parties but raising the same issues.

The Court will have regard to the applicable law.  It is possible for an Irish Court to apply foreign law and vice versa.  However the Courts of the relevant jurisdiction are best placed to rule on questions of law concerning that jurisdiction.  Expert evidence would need to be introduced on foreign law and this is significant in terms of expense and inconvenience.

Provided the relevant connections are first established the court then considers whether the dispute is more closely connected with a foreign Court.  Even if Ireland is not the centre of gravity of the dispute the court may be satisfied that justice requires the claim not to be litigated abroad.  The burden is on the claimant.

If the claimant establishes, he will obtain justice in a foreign jurisdiction this is a relevant factor.  The mere fact that he may be deprived of an advantage abroad is not critical provided the substantial justice will be done in the foreign Court.

If the claim is time barred in another jurisdiction, Ireland may be the more appropriate jurisdiction. The court must be satisfied that the claimant did not act unreasonably in failing to bring proceedings abroad within the time limit.  The defendant may agree to waive the time bar in the foreign Court and this factor may tip the balance otherwise.

Although the existence or otherwise of an advantage would not tip the balance, it is often relevant.  The fact person may recover higher damages in Ireland is not sufficient.  However if, for example, the foreign jurisdiction involves inordinate delays or if successful will not award costs for a successful claim these may be relevant.  If the difference in awards would be very considerable this may be a factor.

The Court may consider that the claimant abilities to afford the claim abroad is a significant factor.  There may for example be no legal aid abroad, conditional fee agreement (England).

If the defendant would not receive a fair hearing in the other Court, for example, because of political reasons, this is a significant factor to tilt the balance in favour of the home State.  However a mere allegation of an unfair trial abroad would not be sufficient.  Positive allegations and cogent evidence must be offered. The Court has to weigh the factors and decide where the balance of convenience lies.

Generally, where there is a choice of law clause the EU rules will apply.  However, where neither party is domiciled in the EU traditional rules apply.  Generally if there is no choice of jurisdiction clause this will apply othe. han where there is an exceptional justification to the contrary.  The defendant would need to show exceptional justification.

If there is an agreement to confer jurisdiction on a non-EU State, the Irish Courts will generally respect and stay proceedings The Court may nevertheless have discretion if strong cause is shown.

The Irish Court may assume jurisdiction notwithstanding the foreign clause exceptionally where there are significant advantages in terms of convenience and expense. If for example the limitation period has expired in the agreed jurisdiction and it is not unreasonable not to have brought proceedings there, this may be sufficient.  If he can establish that he will not get a fair trial in the jurisdiction for political or racial reasons.

At common law there is no jurisdiction to order provisional pre-trial orders such as Injunctions to support foreign litigation.  In England and Wales there is statutory jurisdiction to do so under 1982 Act.

The courts may have power to grant provisional pre-trial orders limited to acts in Ireland or to be performed in Ireland.  If the defendant is amenable to Ireland\’s jurisdiction breaches of the injunction may be enforced in Ireland.

An Irish Court cannot stay proceedings in a foreign jurisdiction.  However it can grant an injunction stopping such proceedings from being instituted or pursued.  This is a so-called anti-suit injunction.

This injunction may be sought by an applicant who claims that the proceedings must be bought in Ireland rather than abroad.  The order may only be granted if the defendant is amenable to the Irish Court’s jurisdiction.  The Courts will be very cautious in issuing such Injunctions in view of the international mutual respect of Courts.

If a remedy is available both in Ireland and abroad, Ireland would only grant an anti-suit injunction if the pursuit of foreign proceedings would be vexatious or oppressive.  This is a difficult standard to fill.  Ireland must overwhelmingly be the most appropriate forum and the advantages to the claimant in the foreign proceedings must be relatively minor,

An anti-suit injunction may be brought where the proceedings arise from a breach of contract or other right.  For example, there may be an arbitration clause or contract conferring exclusive jurisdiction on Ireland.  In these circumstances the anti-suit Injunction is more readily granted.

It still must be so that foreign proceedings would be vexatious or oppressive.  They would be regarded as oppressive if they prevent or hamper proceedings in Ireland.  If the claimant submitted to the foreign jurisdiction an anti-suit would not normally be available.


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