The Plaintiff issued a Plenary Summons on the 9th November 1999 the
general endorsement of claim on which reads as follows:-
“The Plaintiff’s claim is for damages for rape and sexual assault”
The Defendant entered an appearance under protest for the purpose
of contesting jurisdiction. The Plaintiff delivered a Statement of Claim
from which the circumstances giving rise to the claim as asserted by the
Plaintiff appear. The Plaintiff and Defendant were fellow employees and in
the course of their employment travelled to Stockholm in May 1999. The
Plaintiff asserts that while in Stockholm she was raped and subjected to
sexual assault by the Defendant and in respect thereof claim’s damages.
By Notice of Motion dated 25th January, 2000 the Defendant sought to
have the proceedings stayed under the common law jurisdiction of the
Court on the ground of forum conveniens and to have the matter litigated
in Sweden. The Defendant is domiciled in Ireland. The Plaintiff deposes as
to her domicile as Irish and exhibited documents disclose that she holds
both Irish and United States citizenship having been born in the United
States, that she is married to an Irish citizen for some six years and that
she moved to Ireland in January 1999. In his first supplemental Affidavit
the Defendant deposes that the Plaintiff’s domicile is unclear. The Plaintiff
was not however cross examined on her Affidavit and accordingly I accept
that her domicile is Irish. Both Ireland and Sweden are contracting states
to the Brussels Convention of 1968. The Affidavits filed on behalf of the
Defendant on the Application disclose circumstances which would justify
the grant of the relief sought if it is indeed the case that notwithstanding
the provisions of the Brussels Convention of 1968 incorporated into
Irish law by the Jurisdiction of Courts and Enforcement of Judgments
(European Communities) Act, 1988 the common law jurisdiction to stay
on grounds of forum conveniens survives where each of the parties to a
suit is domiciled in a contracting state.
In support of the Application the Defendant relied upon in RE Harrods
(Buenas Aires) Limited [1992] CH 72 and Intermetal Group Ltd & Anor v
Worslade Trading Limited [1998] 2.I.R. 1. The former case was concerned
with the entitlement of a person being sued to have proceedings stayed
on the basis of forum conveniens where the Plaintiff is not domiciled in
a contracting state. It was there held that the common law jurisdiction
to stay survived in such circumstances. The decision is of no assistance
to the Plaintiff for each of the parties in this action is domiciled in a
contracting state. Likewise in the latter case the first named Plaintiff was
domiciled in a non contracting state and in these circumstances upon
the basis of in RE Harrods (Buenas Aires) Limited it was held that the
convention had no application. These decisions are in accord with Article 4
of the Brussels Convention of 1968 set out below.
The only jurisdictions within the European Union in which the principle of
forum conveniens (forum non-conveniens in Scotland) operates are those
of the United Kingdom and Ireland and there is no decision of either of
these jurisdictions or of the European Court of Justice as to whether the
principle can operate where the parties to the litigation are each domiciled
in a contracting state. This is not surprising as the Brussels Convention in
its scheme and in its terms is clear.
The relevant provisions of the convention are as follows:-
“Article 1
This convention shall apply in civil and commercial matters whatever the
nature of the Court or Tribunal.
Article 2
Subject to the provisions of this convention persons domiciled in a
contracting state shall, whatever their nationality, be sued in the Courts of
that state.
Article 4
If the Defendant is not domiciled in a contracting state the jurisdiction
of the Courts in each contracting state shall, subject to the provisions of
Article 16, be determined by the law of that state.
Article 5
A person domiciled in a contracting state may in another contracting state
be sued-
3. In matters relating to tort delict or quasi-delict, in the Courts where the
harmful event occurred -
4. As regards a civil claim for damages or restitution which is based on
an act giving rise to criminal proceedings, in the Court seised of those
proceedings, to the extent that the Court has jurisdiction under its own
law to entertain civil proceedings.
Article 21
Where proceedings involving the same cause of Action and between the
same parties are brought in the Courts of different contracting states,
any Court other than the Court first seised shall of its own motion decline
jurisdiction in favour of that Court.
A Court which would be required to decline jurisdiction may stay it’s
proceedings if the jurisdiction of the other Court is contested”.
The scheme of the convention is distinctly set out in the Jenard Report as
follows:-
“Section 1 sets out the main principles on which the rules of jurisdiction
laid down by the convention are founded:-
1. The rule that a Defendant domiciled in a contracting state is in general
to be sued in the Courts of that state (Article 2).
2. The rule that a person domiciled in a contracting state may in certain
circumstances be sued in the Courts of another contracting state (Article
3).
3. The rules that a person domiciled outside the Community is subject to
all applicable national rules of jurisdiction (Article 4).
The effect of Articles 2 and 5 is that the Plaintiff in this Action has a
choice and can sue the Defendant in the state in which she is domiciled,
Ireland, or under Article 5.3 this being a claim relating to tort in the place
where the harmful event occurred, Sweden: Marinari v Lloyds Bank and
Anor. case C-364/93. While criminal proceedings were contemplated in
Sweden the act complained of did not give rise to criminal proceedings
and accordingly Article 5.4 is not relevant.
The Schlosser Report in paragraph 76-78 discusses the relationship
between the doctrine of forum conveniens and the convention. In
paragraph 78 it records that according to the views of the delegations
from continental member states of the Community the discretion to
stay proceedings on the grounds of forum conveniens is no longer open
to the Courts of the United Kingdom and Ireland when under the 1968
Convention they have jurisdiction and are asked to adjudicate. The report
goes on to say-
“Article 21 expressly prohibits a Court from disregarding the fact that
proceedings are already pending abroad. For the rest the view is
expressed that under the 1968 Convention the contracting states are not
only entitled to exercise jurisdiction in accordance with the provisions
laid down in title two they are also obliged to do so...where the Courts of
several states have jurisdiction the Plaintiff has deliberately been given
a right of choice, which should not be weakened by application of the
doctrine of forum conveniens”.
Having regard to the scheme of the Convention and the terms of the
articles set out above I am satisfied that the discretion of the Court to
stay proceedings on the basis of the doctrine of forum conveniens has
not survived the incorporation of the Convention into Irish law by the
1988 Act. There is support for this view in Boss Group Limited v Boss
France S.A. [1996] 4 ALL ER 970. Accordingly there is no jurisdiction to
stay these proceedings upon the basis that it would be more convenient
and less expensive to have the issues litigated in Sweden. Indeed the
obligation on the Courts in Sweden under Article 21 would be to decline
jurisdiction.
Accordingly I hold that this Court has no jurisdiction on the grounds
on forum conveniens to stay these proceedings by reason of the
incorporation into Irish law of the Brussels Convention of 1968 both the
Plaintiff and the Defendant being domiciled in Ireland.