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United Meat Packers ( Ballaghaderreen )  Ltd v Nordstern Allgemeine Versicherungs AG,
Winterthur Swiss Insurance Company, Gerling-Konzern Allgemeine Versicherungs AG,
Colonia Versicherung Aktiengesellschaft, General of Berne Insurance Company, L'Union
des Assurances de Parisiard and Gan Incendie Accidents
1993 No. 8149P
High Court
31 July 1995
[1996]  2 I.L.R.M. 260
(Carroll J)
31 July 1995
Subject: Civil procedure Other related subjects: Contracts
Keywords: Agents; Jurisdiction
Practice—Jurisdiction—Contract—Application to set aside notice of originating summons made on
foot of an order of the High Court—Whether jurisdiction under O.11, r.1(e)(iii) of the Rules of the
Superior Courts—Whether contract made by or through agent trading or residing within
jurisdiction—Whether another source of jurisdiction available—Jurisdiction of Courts and
Enforcement of Judgments Act 1993 (No. 9), s. 1—Rules of the Superior Courts 1986 (SI No. 15
of 1986), O.11, r.1(e)(ii), (iii)
Facts
O.11, r.1(e)(ii) of the Rules of the Superior Courts 1986 confers jurisdiction on the High Court
where there is a breach of a contract made by an agent within the jurisdiction on behalf of a
principal outside the jurisdiction. Sub-paragraph (iii) of the same rule confers jurisdiction
regardless of where the contract was made, as long as the breach of it occurs within the
jurisdiction. The plaintiff applied to the High Court under O.11, r.1(e)(ii) and was granted leave to
serve notice of an originating summons outside the jurisdiction pursuant to an order of
Geoghegan J dated 16 November 1993. The plaintiff's grounding affidavit had disclosed a belief
that a contract had been entered into on behalf of the defendants by the defendants' agent within
the jurisdiction. The first, second and fifth named defendants applied to set aside service of the
notice of the originating summons and have the proceedings against them struck out on the basis
that the court did not have jurisdiction under O.11, r.1(e)(ii) as the contract was not made within
the jurisdiction by their agent. The plaintiff admitted that this was true, but argued that this did
not matter as an application could be brought under O.11, r.1 (e) (i ii), or proceedings could have
been issued under the Lugano Convention.
Held, by Carroll J in granting the relief sought:
(1) There was no evidence that Geoghegan J was ever asked to grant leave under O. 11,
r.1(e) on the grounds set out in sub-paragraph (iii).
(2) It must be assumed that the order was made squarely on the agency ground and it
could not be assumed that another judge would grant service outside of the jurisdiction
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(3) O.11 requires the leave of the court but does not require an endorsement, * 2 6 1
whereas the Lugano Convention does not require the leave of the court but does require an
endorsement of the summons. The two are mutually exclusive and it would not be
appropriate to amend the summons to allow the case to proceed under the Lugano
Convention.
(4) The plaintiff chose to apply under O.11 and the ground upon which it based that
application was untrue. Accordingly the defendants were entitled to the relief sought. The
plaintiff was free to make another application under O. 11, r.1(e)(iii), in which case the first,
second and fifth named defendants could enter an appearance under protest and challenge
the application.
Case referred  to in judgment
Doran v. Power [1996] 1 ILRM 55
Representation
Peter Shanley SC, P aul Gallagher SC an d Mary Irvine for the plaintiff
Ian Finlay SC an d Paul Gardiner for the first, second and fifth named defendants
CARROLL J
delivered her judgment on 31 July 1995 saying: The first, second and fifth named defendants,
which I call the Swiss defendants, have applied to set aside service of the notice of an originating
summons made on foot of an order of the High Court on 16 November 1993 by Geoghegan J. In
the grounding affidavit it was stated according to the deponent's information and belief that the
contract was entered into on behalf of the defendants by the defendants' agent within the
jurisdiction, which agent continued to trade. The  Swiss defendants entered an appearance under
protest and then brought a motion to strike out the proceedings against them on the ground that
the court does not have jurisdiction under O. 11, r.1(e)(ii) because the contract was not made
within the jurisdiction by their agent.
The plaintiff in a replying affidavit admits that this is true. Mr Shanley SC ar gues that it does not
matter:
(a) because he can apply for another order under O. 11, r.1(e)(iii), or
(b) because at the date of issue of the summons, the Lugano convention, to which Switzerland is
a party, applied and he could equally well have issued under that convention.
The argument was made that when the order under O. 11, r.1(e)(ii) was made, there was
evidence which brought it into another class, namely, O. 11, r.1(e)(iii), which reads as follows:
(e) The action is one brought to enforce, rescind, dissolve, annul, or
otherwise affec t a contract, or to recover damages or other relief for or in
respect of the breach of a contract —
… * 2 6 2
(iii) 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
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have been performed within the jurisdiction.
There is no averment in the grounding affidavit in those terms. There is no evidence that
Geoghegan J was ever asked to make the order under O. 11, r.1(e) on the grounds set out in sub-
paragraph (iii). I must assume that the order was made squarely on the agency ground and I
cannot assume that another judge would grant service out of the jurisdiction on ground (iii) on
the evidence which was before Geoghegan J.
In relation to the argument about the Lugano Convention, Mr Shanley cited Doran v. Power
[1996] 1 ILRM 55 where the plaintiff sued under the Brussels Convention when he should have
sued under the Collision Convention. The Supreme Court amended the summons and held that
the court clearly had jurisdiction under the Collision Convention to hear the proceedings. I do not
know what form the amendment took; it could have been by deletion. I am told no particular form
of endorsement was necessary under the Collision Convention.
I would distinguish this case from Doran v. Power. Here the summons was issued under O. 11
with leave of the court and it is not a case of it being issued under the Lugano Convention where
no leave is necessary. The two are mutually exclusive. O. 11, r. 1 was amended by SI No. 14 of
1989, article 83, by inserting the words ‘provided that an originating summons is not a summons
to which O. 11(A) ap plies’ before the words ‘service out of the jurisdiction of an originating
summons’. O. 4, r.1(a) as  inserted by article 1 of SI No. 14 of 1989, requires an endorsement
under the Brussels Convention.
Then under s. 1 of the Jurisdiction of Courts and Enforcement of Judgments Act 1993 (dealing
with the Lugano Convention) the 1993 Act is to be construed as one with the Jurisdiction of
Courts and Enforcement of Judgments Act 1988 (which deals with the Brussels Convention). It
follows that an endorsement is necessary under the Lugano Convention.
The plaintiff chose to apply under O. 11 and the ground on which it based that application was
untrue. The Swiss defendants were entitled to object and, in my opinion, they are entitled to
succeed. If the plaintiff chooses to make another application based on O. 11, r.1(e)(iii), so be it, in
which case the  Swiss defendants can enter an appearance under protest and argue their case on
the ground it does not apply. Or if the plaintiff decides to go down the Lugano route, the  Swiss
defendants are entitled to argue it does not apply by virtue of articles 12 or 17 of that convention.
In my opinion, the defendants are entitled to succeed on this application.
* 2 6 3
Representation
Solicitors for the plaintiff: Arthur Cox
Solicitors for the first, second and fifth named defendants: Mason Hayes and Curran
Niall B.M. Hill Barrister

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