Leave to Serve Non-EU

Leave to serve proceedings out of the State is regulated by Order 11 of the Rules of the Superior court. They define the right to litigate against non-Irish defendants,  where the EU rules do not apply. The EU rules may apply to cases involving multiple defendants some of whom are in some of whom are not domiciled in a member state in the EU (or contracting state in the case of other conventions).

In these cases the common law (order 11) rules apply to such defendants. There are some exceptions. There are some cases where the defendant is domiciled in an EU member state but the proceedings do not come within the scope of the EU rules. These exceptions are relatively narrow.

The application for leave to serve a summons or notice of the summons outside the jurisdiction must be made to court on a  grounding affidavit. It is entitled in respect of intended parties. It is made by way of a unilateral ex parte application based on affidavit.

The affidavit must be sworn by the claimant and

• state the grounds in the rules that apply
• exhibit the summons intended to be served for the notice of summons
• aver that there is a good claim
• set out whether the defendant is an Irish citizen
• specify why Ireland is the appropriate and convenient court
• the court must be satisfied that the case is one in which  service 1s properly permitted outside the jurisdiction.

The rules require the court to have regard to the value of the claim, the property affected and the cost and convenience of proceedings in Ireland or in the defendant’s place of residence.

It appears that the plaintiff needs to have a good arguable case. The court considers whether Ireland is the appropriate venue. This looks at the dispute in both legal and practical terms.

Regard is had to the

• claim value,
• convenience,
• expense location place of residence and business of the parties,
• law that applies to process,
• coherence and anti fragmentation.

The onus is on the plaintiff to show that there is a practical benefit in the proceedings  taken place in the jurisdiction.  The courts require that there is  some practical benefit to be had heard within the jurisdiction.

The order giving leave specifies time after service within which the defendant must enter an appearance. The order must be served with the summons.

Where the defendant is not is not believed to be a citizen of Ireland are known to be a citizen of Ireland “notice of summons” rather than the summons itself is served. A state had jurisdiction over its citizens to serve process.

Failure to issue a notice of summons where it should have been done may be a grounds for setting aside the summons

The defendant before entering an appearance may apply to set aside service of the summons or notice of summons. This is made by notice on motion to the plaintiff and supported by affidavit.

Grounds for Leave

Generally where the claim relates to land in Ireland, leave will be granted. This also applies to actions and claims related to land such as enforcement of deeds contracts trusts relating to or and liabilities arising from land.

Leave may be granted where the defendant is domiciled or ordinarily resident in Ireland. This is the common law concept of domicile.

Leave may be granted in an action concerning a contract  the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or other relief for or in respect of the breach of a contract

• made within the jurisdiction; or
• made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or
• by its terms or by implication to be governed by Irish Law, or is one brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;

The application for leave must demonstrate that the relevant grounds apply.

The same rule applies to restitution claims that are contractual quasi contractual nature. The claim must be quasi contractual in nature

Leave may be granted for service of summons or notice of summons outside the jurisdiction based on a tort committed within the jurisdiction. A significant element of the civil wrong must be committed in the state. As with the other cases leave is not automatic. There must be a significant connection with the state and the court will have regard to the implications for the plaintiff and defendant.

The ground extend to claims in defamation where has been publication within the State.

Service outside the jurisdiction may be allowed for an injunction is brought relating to something to be done within the jurisdiction or to be prevented and removed regardless of whether damages are also sought.

Service may be permitted where any person out of the jurisdiction is necessary or proper party to an action properly brought against some other person duly served within the jurisdiction. This permits the court to assume jurisdiction in respect of a claim which may not be within any of the other paragraphs once a defendant in the action can be served within the jurisdiction.

The person concerned must be a proper party to the proceedings. The rule may not be used to serve a defendant outside the jurisdiction where the defendant within the jurisdiction is made a party for the purpose of seeking jurisdiction over a party outside the jurisdiction for the purpose of the rule.

Courts approach applications for leave to serve outside the jurisdiction with circumspection. This is all the more so when this residual rule is in play. There must be a substantial element to the claim against the defendant within the jurisdiction.

 

There are special provisions in respect of arbitration. Leave for service may be granted if the proceedings relate to an arbitration held or to be held within the jurisdiction or the enforcement of an award or an interim measure made by an arbitral tribunal in an arbitration.

Leave may be granted under miscellaneous statutes in relation to

• real property
• aeroplanes and ships registered within the jurisdiction or
• trademarks intellectual property registered in the Irish intellectual property office of Ireland.

Leave may be granted for proceeding is by a mortgagee or mortgagor in relation to a mortgage of personal property situate within the jurisdiction and seeks relief of the nature or kind following, that is to say sale, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under the rule) any personal judgment or order for payment of any moneys due under the mortgage.

Outside of the above categories of persons may be given notice of proceedings in the jurisdiction in which they may have an interest. This includes cases relating to

lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected. Tthe Court may, without affecting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening.

While most authorities hold that the common law cases must fall within the above categories, there is  support for the proposition that there is a residual category where there is discretion to permit service outside the jurisdiction in other cases.

The Irish court may have  jurisdiction by the terms of the contract at common law. This covers claims arising out of the contract and counterclaims. Parties to a contract may agree that the Irish courts shall have jurisdiction in relation to disputes arising out of the contract that they may provide that service of the summons may be effected in any place either inside or outside the jurisdiction on any party or the person on behalf of the party in any manner specified or indicated in the contract.

The choice of jurisdiction clause will generally be upheld in the absence of compelling circumstances otherwise. The contractual position may be waived expressly or by taking a step inconsistent with it. This may for example involve entering an appearance in another jurisdiction.

The Irish courts have jurisdiction to refuse to hear a claim where another forum or court is the more appropriate one. The must be some other court which can hear the proceedings. The court may stay proceedings.(forum conveniens)

The stay must not deprive the plaintiff of his legitimate personal or judicial litigation advantage which would be available to him if he invoked the jurisdiction of the domestic court.

The court decides whether the foreign court is clearly more distinctly appropriate. This is the court with the most real and substantial connection. Factors of convenience and expense are relevant including the availability of witnesses and parties.

The first  principle is that the court should look at practical factors such as those affecting convenience expense applicable law and location or place of business of the parties to determine whether the applicant has established that there is an alternative forum which is clearly distinctly more appropriate than  Ireland and thus the natural form for the conduct of the proceedings.

In the event that the applicant meets this obligation the court must consider whether the respondent has put forward a sufficient basis for suggesting that justice nonetheless requires that proceedings be transferred to Ireland.