Stay & Anti-Suit Non-EU

Table of Contents

Stay for Appropriate Court

The Courts may stay proceedings on the basis that 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.

Stay Criteria

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.

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.

Set-Aside Service

Order 12 of the Rules of the Superior Courts permit the defendant before entering an appearance to apply to set aside service of the summons or notice of summons. Where an order granting leave to serve the proceedings out of the jurisdiction is made, an application may be made to set aside or discharge the order. The application may be made before an appearances entered.

A conditional appearance may also be entered to contest jurisdiction and an application may be made to challenge jurisdiction after that.

The application reconsiders the unilateral ex parte permission to permit service of proceedings outside the jurisdiction. The burden is on the party who seeks permission to prove entitlement. The issue of jurisdiction is considered in the application. The plaintiff must show it has a good arguable case

Multiple Parties

Where there are 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 that would be more conveniently brought in Ireland than in a foreign jurisdiction, then this may tip the balance in Ireland’s favour. Another factor in terms of convenience is whether other proceedings exist between different parties but raise the same issues.

Connective Factors

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 of the foreign jurisdiction being the appropriate one.

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.

Advantage Abroad

Although the existence or otherwise of an advantage would not tip the balance, it is often relevant. The fact that a 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.

If the claimant establishes that 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 that 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.

The Court may consider that the claimant’s ability to afford the claim abroad is a significant factor. There may, for example, be no legal aid abroad or conditional fee agreement.

If the defendant does not receive a fair hearing in the other court, for example, because of political reasons, this is a significant factor in tilting 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.

Choice of Law

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.

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 a strong cause is shown. The defendant would need to show exceptional justification.

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.

Anti-Suit Injunctions

At common law, there is no jurisdiction to issue provisional pre-trial orders such as injunctions to support foreign litigation. In England and Wales there is statutory jurisdiction to do so.

The courts may have the 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.

Injunction Criteria

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 prevented or hampered proceedings in Ireland. If the claimant submitted to the foreign jurisdiction, an anti-suit would not normally be available.