Olympia Productions Ltd v Cameron Mackintosh, Cameron Mackintosh (Overseas)
Ltd, Cameron Mackintosh Ltd
1989 No. 14753P
High Court
9 October 1991
[1992] I.L.R.M. 204
(Costello J)
9 October 1991
Subject: Civil procedure
Keywords: Contracts; Jurisdiction; Place of performance; Vexatious proceedings
Practice—European Community—Jurisdiction in civil and commercial matters—Plaintiff seeking to
enforce an alleged contract whereby the defendants agreed to grant sole and exclusive rights to
perform a musical—Defendants domiciled in United Kingdom—Whether Ireland the place of
performance of the obligation—Whether claim vexatious—Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters 1968; Articles 2, 5(1)—Rules of the
Superior Courts 1986, O. 19 r. 28
Facts
The plaintiff owns the Olympia Theatre in Dublin and claimed it had a contract for the sole and
exclusive right to perform the musical play, Les Misérables in Ireland. It sued the three defendants for
specific performance of that contract. In the present action, the first and third named defendants
applied under RSC O. 19 r. 28, or alternatively pursuant to the court's inherent jurisdiction, for an
order striking out the claim against them on the ground that it was vexatious. They claimed they did
not own and so could not grant the licence which was the subject matter of the claim. All three
defendants also applied to set aside service of the summons on the ground that the court had no
jurisdiction to entertain the plaintiff's claim. They relied on the Convention on jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters 1968 (known as the ‘Brussels
Convention’). They claimed that under Article 2 of the convention, the Irish courts had no jurisdiction
to entertain the claim against them as all three of the defendants were domiciled in the United
Kingdom. The plaintiff replied by referring to Article 5(1) of the convention which provides that, in
matters relating to a contract, a person domiciled in a *205 contracting state may be sued in the
courts of the place of performance of the obligation. In their affidavit before the court, the three
defendants also claimed that (a) negotiations between the parties had never crystallised into a final
bargain and (b) that if a contract had been concluded, it was between the plaintiff and the second
named defendant Cameron Mackintosh (Overseas) Ltd who owned the relevant performing rights.
Held, by Costello J in dismissing the application by the first and third-named defendants for an order
striking out the plaintiff's claim but in making an order that service of the summons on all defendants
be set aside:
(1) O. 19 r. 28 is only applicable when a statement of claim discloses on its face no
reasonable cause of action (Barry v Buckley [1981] IR 306 applied). As a cause of action is
disclosed the defendants' claim to have the proceedings struck out pursuant to the rule must
fail.
(2) The court's inherent jurisdiction to strike out vexatious claims is exercised sparingly and
only in clear cases. When, as in this case, there exist controversial issues of fact which can
only be resolved by oral testimony, the court cannot conclude that the proceedings arePage1
vexatious.
(3) The word ‘obligation’ in Article 5(1) of the Brussels Convention refers to the contractual
obligation forming the basis of the legal proceedings (De Bloos v Bouyer [1976] ECR 1497
applied). The obligation forming the basis of the plaintiff's claim is to grant the sole and
exclusive right to perform Les Misérables in Ireland. It is the promise to grant an intellectual
property right. This obligation would be performed by the execution in England of a valid legal
document. Accordingly the English courts and not the Irish courts have jurisdiction under the
convention.
(4) There is a distinction between (a) the performance by the grantor of his obligation to grant
a right and (b) the exercise of the right by the grantee once that obligation has been fulfilled. (
Ivenel v Schwab [1982] ECR 1891 distinguished). The contractual obligation on which the
plaintiff's claim is based is the promise to grant an intellectual property right and this obligation
is to be performed in England.
Cases referred to in judgment
Barry v Buckley [1981] IR 306
De Bloos v Bouyer [1976] ECR 1497
Ivenel v Schwab [1982] ECR 1891
Representation
Peter Kelly SC and Martin Giblin for the plaintiff
John Cooke SC and Denis McDonald for the defendants
COSTELLO J
delivered his judgment on 9 October 1991 saying: The plaintiff owns the Olympia Theatre in Dublin
and claims that it obtained the right to *206 perform there a highly successful musical play called Les
Misérables . It has sued three defendants, firstly Mr Cameron Mackintosh in person and then two
companies which he controls, Cameron ( Mackintosh Overseas) Ltd and Cameron Mackintosh Ltd. Mr
Mackintosh is domiciled and resident in England and his two companies are English-registered. The
statement of claim pleads that ‘by an agreement made between the plaintiff and the defendant [sic]
the defendant [sic] agreed to grant to the plaintiff the sole and exclusive right’ to perform Les
Misérables in Ireland. This obvious drafting error (there are three defendants and the contracting party
is not identified) was corrected in a reply to a notice for particulars in which it is stated that the
plaintiff's claim is that ‘the contract in question was between the plaintiff and the defendant and each
or either of them…’.
The three defendants entered conditional appearances and have now applied for two different orders.
Mr Cameron and his company Cameron Mackintosh Ltd have applied (a) under O. 19 r. 28 (or
alternatively pursuant to the court's inherent jurisdiction) for an order striking out the claim against
them on the ground that it is vexatious and (b) all three defendants have applied to set aside service
of the summons on the ground that the court has no jurisdiction to entertain the plaintiff's claim under
the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
1968 (the ‘Brussels Convention’).
O. 19 r. 28 provides that:
The court may order any pleading to be struck out, on the ground that it discloses no reasonable
cause of action or answer and in any such case or in case of the action or defence being shown
by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or
dismissed, or judgment to be entered accordingly, as may be just.
The defendants' case (as deposed to in affidavit evidence filed with the application) is that (a) the
parties' negotiations had never crystallised into a final bargain but that (b) if a contract had been
concluded it was concluded with Cameron Mackintosh (Overseas) Ltd, who owned the relevantPage2
performing rights. It is urged that the claim against Mr Cameron Mackintosh and his company
Cameron Mackintosh Ltd is clearly unsustainable and therefore vexatious because only Cameron
Mackintosh (Overseas) Ltd could have granted the licence the subject-matter of the claim. But this
submission depends on the acceptance of the evidence adduced to support it and as the court can
only make an order under O. 19 r. 28 when a statement of claim discloses on its face no reasonable
cause of action (see Barry v Buckley [1981] IR 306), and as the statement of claim herein (as
explained by the reply to the notice for particulars) certainly discloses a cause of action (whether a
sustainable one is another matter) *207 the defendants' claim to have the proceedings struck out
pursuant to the rule must fail.
I think their claim for an order pursuant to the court's inherent jurisdiction to strike out vexatious claims
must also fail. This jurisdiction is exercised sparingly and only in clear cases. Here, the defendants'
evidence has been answered by an affidavit sworn by the plaintiff's managing director. He swears that
‘at all times I believed that I was negotiating with Cameron Mackintosh in a personal capacity or on
behalf of one or other of the several companies which he owns and controls’. This is not a case in
which the terms on which the parties contracted are perfectly clear and undisputed. When, as in this
case, there exist controversial issues of fact which can only be resolved by oral testimony it seems to
me that the court cannot conclude that the proceedings are vexatious. It may well be that the plaintiff's
claim against one or more of the defendants will ultimately fail — but that is not the same thing as
saying that any of the present claims are vexatious.
Article 2 of the Brussels Convention provides that:
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,
and the defendants claim that as they are domiciled in the United Kingdom the Irish courts have no
jurisdiction to entertain the present claims against them. The plaintiff replies by referring to Article 5
(1) of the convention which provides that:
A person domiciled in a contracting state may, in another contracting State, be sued:
(1) in matters relating to a contract, in the courts for the place of performance of the obligation in
question;
What arises therefore for determination now is (a) what is the obligation in question in the plaintiff's
claim and (b) is the place of performance of the obligation in question Ireland?
In its judgment in De Bloos v Bouyer (Case 14/76) [1976] ECR 1497 the European Court of Justice
has held that Article 5(1) cannot be interpreted as referring to any obligation whatever arising under
the contract in question, and that the word ‘obligation’ refers to the contractual obligation forming the
basis of the legal proceedings (p. 1508). Applying this principle to the facts of this case it seems to me
that the obligation forming the basis of the plaintiff's claim is an obligation to grant the sole and
exclusive right to perform in Ireland the stage show Les Misérables . This obligation would be
performed by the execution of a valid legal document by which exclusive performing rights are *208
granted. The execution of such a document would take place in England and not in this country and
accordingly the English courts and not the Irish courts obtain jurisdiction under the Brussels
Convention, and Article 5 (1) is of no avail to the plaintiff.
I have reached this conclusion notwithstanding the plaintiff's argument based on Ivenel v Schwab
(Case 133/81) [1982] ECR 1891. That was a case relating to the appointment of a French
representative of a German firm. The contract in question contained a number of different obligations
and the court held that for the purposes of the application of Article 5 (1) of the convention regard
should be had to the obligation which characterizes the contract. The plaintiff here argues that (a) the
draft licence which was submitted by the defendants shows that the defendants were to participate in
the production of the work in Dublin (b) that this is a multi-obligation contract and (c) that the
obligation which characterises this contract is the performance of the play in Dublin, and that
accordingly (d) the Irish courts have jurisdiction under Article 5(1). But this argument fails to recognize
the distinction between (a) the performance by the grantor of his obligation to grant a right and (b) the
exercise of the right by the grantee once that obligation has been fulfilled. Here the contractual
obligation on which the plaintiff's claim is based is the promise to grant an intellectual property right —Page3
and this obligation is to be performed in England. Once this obligation is fulfilled by the grant of
performing rights these would of course be exercised in Ireland. But the Irish courts obtain no
jurisdiction in the present claim under Article 5(1) because of this fact.
I must conclude therefore that the Irish courts have no jurisdiction to try the plaintiff's claim and order
that the service of the summons on all defendants be set aside.
Representation
Solicitors for the plaintiff: David Walley & Co.
Solicitors for the defendants: Eugene F. Collins & Son
Jeri Ward Barrister
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