THE HIGH COURT  
[2021] IEHC 394  
[2019 No. 7672 P.]  
BETWEEN  
CAROLINE CROTTY  
PLAINTIFF  
AND 
SAS AB AND SWEDAVIA AB  
DEFENDANTS  
JUDGMENT of Ms. Justice Butler delivered on the 10th day of June, 2021  
Introduction  
1. This plaintiff suffered an unfortunate accident when disembarking a flight from Stockholm 
at Ostersund Airport in northern Sweden in November 2017. She claims to have slipped 
and fallen on ice as a result of which she sustained a serious injury to her righ t arm. She 
has sued two defendants in respect of this accident. The first defendant, SAS AB, is an 
airline carrier and operated the flight between Stockholm and Ostersund on which the 
plaintiff was a passenger. The second defendant, and the moving party in  the application 
before the court, is the airport authority which manages and operates Ostersund Airport.  
2. Although the factual basis of the plaintiff’s claim is ostensibly straightforward, it has given 
rise to complex jurisdictional and procedural issu es. This judgment concerns the second 
defendant’s application to strike out the plaintiff’s proceedings against it on the basis that 
it has not been properly served and that the Irish Courts do not have jurisdiction to 
determine the claim.  
Procedure to Da te 
3. The plaintiff issued proceedings by way of personal injury summons in October 2019, 
having been duly authorised to do so by the Personal Injuries Assessment Board. In these 
proceedings, the plaintiff makes an identical claim against both defendants o n four 
separate grounds, namely negligence, breach of duty, breach of contract and breach of 
statutory duty and regulation including Article 17 of the “Montreal Convention Regulation 
EC 2027/97”. As shall be seen, the Montreal Convention and Regulation (EC ) 2027/97 are 
in fact two discrete legal instruments making it difficult to ascertain exactly what claim is 
being made by the plaintiff under the latter. Paragraph 3(iii) of the personal injury 
summons expressly pleads that the first defendant and only the  first defendant is liable 
pursuant to the Montreal Convention.  
4. Identical particulars, which are fairly general in nature, are pleaded as against both 
defendants focusing on the presence of and the failure to clear ice and the failure to warn 
the plaint iff of this danger. Both defendants have raised particulars seeking to ascertain 
the location of the ice and the point in the disembarkation process at which the plaintiff 
fell. Although clearly relevant to potential liability as between the two defendants , these 
matters are not apparent from the case as pleaded and, at the time this application was 
heard the plaintiff had not replied to the particulars raised.  
5. The summons issued by the plaintiff was endorsed in respect of jurisdiction as follows: - 
 “This Honourable Court has jurisdiction to hear and determine this claim pursuant 
to Article 33(2) of the Montreal Convention and Article 17 of the Montreal 
Convention Regulation EC No. 2027/97. The plaintiff in this matter is domiciled and 
permanently reside nt in this State. Furthermore, the defendant carrier flies from 
this State to Sweden.  
 This Honourable Court has jurisdiction to hear and determine this matter pursuant 
to Articles 7(1) and (2) of Council Regulation (EC)1215/2012. No other proceedings 
have been instituted in any other Member State of the European Union.”  
 This endorsement allowed for service out of the jurisdiction on the defendants, both of 
whom are domiciled in Sweden, without leave of the court.  
6. The second defendant entered a conditi onal appearance for the purpose of contesting 
jurisdiction on 9th January 2020 and on the same date issued this motion seeking to have 
the service on it of the personal injury summons set aside and the proceedings struck 
out. The first defendant entered an  appearance on 17th January 2020 and, for reasons 
which are explained more fully below, did not contest the jurisdiction of the Irish Courts 
to deal with the plaintiff’s claim against it. Thus, the Irish Courts are properly seised of 
the plaintiff’s claim against the first defendant and the issue for determination is whether 
the plaintiff’s claim against the second defendant comes within or can be brought within 
the jurisdiction of the Irish Courts either in its own right or because it arises out of the 
same facts and circumstances as the plaintiff’s claim against the first defendant.  
Montreal Convention, 1999 and Regulation (EC) 2027/97  
7. The Montreal Convention, 1999 (which replaced the earlier Warsaw Convention) provides 
unified rules for the liability of carriers in respect of the death or injury to passengers and 
the loss or damage of baggage or cargo occurring in the course of internat ional air 
carriage. Ireland, Sweden and the European Union have all ratified the Montreal 
Convention.  
8. Under Article 17(1) of the Convention, a carrier is strictly liable for bodily injury of a 
passenger “ upon condition only that the accident which caused the death or injury took 
place on board the aircraft or in the course of any of the operations of embarking or 
disembarking ”. There are financial limits on the carrier’s strict liability under Article 17(1) 
and, where the damages claimed exceed that  amount, the carrier is not liable if it can 
show that the injury was not due to its negligence or was due to the negligence of a third 
party. Further, Article 33 provides for the jurisdiction of national courts to hear a claim for 
damages under the Conven tion. Article 33(2) allows the plaintiff the option of suing in the 
courts of the domicile of the carrier or of its principal place of business or where it has a 
place of business through which the contract was made or the courts of the place of 
destinatio n of the flight or, alternatively, the courts of the place where the plaintiff has his 
or her principal and permanent residence at the time of the accident provided the carrier 
operates passenger services to and from that place. Questions of procedure are to be 
determined by the law of the court seised of the case (Article 33(4)).  
9. The plaintiff has also endorsed the personal injury summons under what is described as 
the “Montreal Convention Regulation EC 2027/97”. This is presumably intended to be a 
reference to Regulation (EC) 2027/97 on air carrier liability in respect of the carriage of 
passengers and their baggage by air. Although this regulation predates the adoption of 
the Montreal Convention in 1999, it was adopted in anticipation of that Conventi on which 
was then under negotiation and, thus, expressly provides that it applies not only to the 
Warsaw Convention but also to all international instruments which supplement and are 
associated with it. The Regulation itself was amended in 2002 by Regulati on (EC) 
889/2002 to take full account of the Montreal Convention.  
10. An “air carrier ” is defined for the purposes of the Regulation as meaning an air transport 
undertaking with a valid operating licence and a “ community air carrier ” is an air carrier 
with a licence granted by a Member State. A “ person entitled to compensation ” means a 
passenger entitled to claim in accordance with applicable law. Under Article 3(1) of the 
Regulation, the liability of a community air carrier in respect of passengers is gov erned by 
all provisions of the Montreal Convention relevant to such liability. The Regulation is 
concerned in part with ensuring that carriers have sufficient insurance to meet claims 
and, in part, with ensuring that when carriers are selling tickets to me mbers of the public 
that a summary of the main provisions governing liability for passengers and their 
baggage is made available to intending passengers. The notice to be provided to 
passengers is contained in an annex to the Regulation and, inter alia , clearly sets out that 
for damages below the relevant amount “the air carrier cannot contest claims for 
compensation”. Further, the notice stipulates under “time limit for action ” that any court 
action claiming damages “ must be brought within two years from t he date of arrival of the 
aircraft ”. The Regulation does not deal expressly with jurisdiction in respect of the claims 
covered by its provisions.  
11. Although the flight on which the plaintiff was travelling was an internal flight, it was part 
of a contra ct for international carriage from Dublin to Ostersund between herself and the 
first defendant. Consequently, the first defendant as an air carrier will be strictly liable to 
the plaintiff up to certain financial limits and liable without limitation if sho wn to be 
negligent in respect of any injury sustained by her whilst in the process of disembarking 
the aircraft. In effect, all the plaintiff has to show is that she was injured in the course of 
disembarking from the plane (as she has pleaded) in order to succeed, subject to certain 
limitations, against the first defendant. Further, under Article 33(2) of the Convention, the 
plaintiff is entitled, at her election, to bring these proceedings before the Irish Courts 
being the courts of the place of her princi pal and permanent residence in circumstances 
where the first defendant operates passenger services to and from Ireland. Consequently, 
and unsurprisingly the first defendant has not taken issue with the jurisdiction of the Irish 
Courts in respect of the pla intiff’s claim.  
12. However, the first defendant’s liability is dependent on the plaintiff establishing that the 
accident occurred in the course of disembarking the plane. The Convention does not 
define what is meant by disembarking and there is a grey are a between a passenger 
being wholly within a plane and being wholly within an airport and thus both legally and 
factually a potential overlap exists between the liability of the carrier and the liability of 
the airport. At the same time, the second defendan t, as an airport and not a carrier, does 
not come within the scope of the Montreal Convention nor Regulation (EC) 2027/97 and is 
not strictly liable to the plaintiff for any injury sustained by her merely because she was 
present on an airport property. Ins tead, the liability of the second defendant will most 
likely depend on the rules regarding occupier’s liability or its equivalent under Swedish 
law. The Montreal Convention does not purport to confer jurisdiction on any courts in 
respect of injuries sustai ned in airports. This is logical. The purpose of the Montreal 
Convention was to ensure that people who sustain injury or loss in the course of 
international travel in circumstances where no one state might have readily identifiable 
jurisdiction and it migh t not be possible to ascertain the governing law, should be entitled 
to appropriate damages. The imposition of strict liability whilst allowing a plaintiff a choice 
of jurisdiction obviates the need for the courts in any jurisdiction to attempt to identify  or 
apply the law of another jurisdiction.  
Brussels Recast Regulation  
13. Jurisdiction as between Member States of the European Union in civil proceedings is dealt 
with in Regulation 1215/2012 on jurisdiction and the recognition and enforcement of 
judgmen ts in civil and commercial matters. This Regulation is also known as the Brussels 
Recast Regulation since it is a recasting and replacement of Council Regulation 44/2001 
which in turn replaced the 1968 Brussels Convention on jurisdiction and the enforcemen t 
of judgments in civil and commercial matters. The Regulation provides a mandatory 
system of rules for determining which courts have jurisdiction in respect of proceedings 
which, in the case of Ireland, replaces the common law doctrine of forum non conven iens 
in matters to which it applies. The common law doctrine required that a court should 
decline jurisdiction when it was apparent that another venue was more appropriate for 
the adjudication of the matter. This, in general, meant that the Irish Courts wo uld decline 
jurisdiction in respect of an accident which occurred in Sweden and involved Swedish 
defendants even though the plaintiff might be an Irish resident or an Irish citizen.  
14. The fundamental basis for jurisdiction under the Recast Regulation is  a defendant’s 
domicile and this is provided for in Article 4(1) as follows: - 
 “Article 4  
(1) Subject to this Regulation, persons domiciled in a Member State shall, whatever 
their nationality, be sued in the courts of that Member State.”  
 Exceptions are th en made from this fundamental principle by a series of special rules. 
That these exceptions are derogations from a general rule is evident from Article 5(1) 
which states: - 
 “Article 5  
(1) Persons domiciled in a Member State may be sued in the courts of ano ther Member 
State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.”  
15. There are two main objectives underlying the various special rules both linked to the 
sound administration of justice and the rationale for which is evident from  Recitals 16 and 
21 which provide, respectively: - 
“(16)  In addition to the defendant’s domicile, there should be alternative grounds of 
jurisdiction based on a close connection between the court and the action or in 
order to facilitate the sound administra tion of justice. The existence of a close 
connection should ensure legal certainty and avoid the possibility of the defendant 
being sued in a court of a Member State which he could not reasonably have 
foreseen. This is important, particularly in disputes c oncerning non -contractual 
obligations arising out of violations of privacy and rights relating to personality, 
including defamation.  
(21) In the interests of the harmonious administration of justice it is necessary to 
minimise the possibility of concurrent  proceedings and to ensure that irreconcilable 
judgments will not be given in different Member States…”  
16. The special rules upon which the plaintiff has relied in these proceedings are contained in 
Article 7(1) and (2) and Article 8(1) and (2). The main difference between Article 7 and 
Article 8 is that cases come within the former directly because of the nature of the cause 
of action and/or the manner in which it arises whereas they come within the latter 
because of their connection to other defendants o r other proceedings. Insofar as relevant, 
these articles provide as follows: - 
 “Article 7  
 A person domiciled in a Member State may be sued in another Member State:  
(1)(a)  in matters relating to a contract, in the courts for the place of performance of the  
obligation in question…  
(2) in matters relating to tort, delict or quasi -delict, in the courts for the place where 
the harmful event occurred or may occur;”  
 And:- 
 “Article 8  
 A person domiciled in a Member State may also be sued:  
(1) where he is one of a number of defendants, in the courts for the place where any 
one of them is domiciled, provided the claims are so closely connected that it is 
expedient to hear and determine them together to avoid the risk of irreconcilable 
judgments resulting from separ ate proceedings;  
(2) as a third party in an action on a warranty or guarantee or in any other third -party 
proceedings, in the court seised of the original proceedings, unless these were 
instituted solely with the object of removing him from the jurisdictio n of the court 
which would be competent in his case;”  
17. The endorsement on the plaintiff’s summons does not distinguish between the basis on 
which it is claimed that the Irish Courts have jurisdiction in respect of the case against the 
first defendant an d in respect of the case against the second defendant. As the second 
defendant is not an air carrier, it does not fall within the scope of the Montreal Convention 
and the first paragraph of the endorsement is manifestly not applicable to it. The second 
paragraph refers only to Article 7(1) and (2) of the Recast Regulation.  
18. The second defendant’s solicitor challenged the asserted basis for jurisdiction under 
Article 7 in an affidavit sworn to ground this motion. In a replying affidavit dated 2nd 
September 2020, the plaintiff’s solicitor focused the claim on Article 7(2) but also 
tentatively advanced grounds on which Article 7(1) might be relied upon. In addition, the 
plaintiff’s solicitor sought to rely on Article 8(1) and (2) even through these p rovisions 
were not recited in the endorsement on the summons. In particular, he stated that 
although he did not know at that stage whether the first defendant would seek an 
indemnity or contribution against the second defendant, in the event that the first  
defendant were to seek such an indemnity or contribution “ then this Honourable Court 
has jurisdiction to hear the plaintiff’s claim by reason of Article 8(2) of the said 
regulations and if necessary, the plaintiff will apply to this Honourable Court at th e 
hearing of the motion to amend the Indorsement of the Personal Injury Summons ”. 
19. A notice of indemnity and contribution dated 3rd September 2020 was subsequently 
served by the first defendant on the second defendant. That notice is endorsed pursuant 
to the Jurisdiction of Courts and Enforcement of Judgments (EC) Act, 1998 and the Recast 
Regulation citing Article 8(2) and Article 67 of the latter. Article 67 of the Recast 
Regulation provides that the Regulation “shall not prejudice the application of pr ovisions 
governing jurisdiction… in specific matters which are contained in instruments of the 
Union or in national legislation harmonised pursuant to such instruments ”. The invocation 
of Article 67 may be intended to refer to the jurisdictional provisions  of the Montreal 
Convention and/or to the provisions of Council Regulation (EC) 2027/97 but as no 
argument was addressed to the court on Article 67, this remains unclear. A significant 
issue in this application is whether the service of this notice of inde mnity and contribution 
crystallised an existing basis for the jurisdiction of the Irish Courts in respect of the 
plaintiff’s claim or created a new basis for jurisdiction which did not otherwise exist at the 
time the summons was served on the second defend ant. If the latter is the case, then a 
further issue arises as to whether the invocation of jurisdiction by the first defendant can 
remedy a lack of jurisdiction at the time the summons was served on the second 
defendant by the plaintiff. Before dealing wi th these questions, I propose looking firstly at 
some general principles applicable to the determination of jurisdiction under the Recast 
Regulation and then examining each of the bases on which the plaintiff claims that the 
Irish Courts have jurisdiction.   
General Principles  
20. The fundamental principle underlying the Recast Regulation is that persons should be 
sued before the courts of the Member State in which they are domiciled (Article 4(1)) and 
jurisdiction is almost always available on this ground ( see Recital 15). The special rules, 
although they provide an independent basis for conferring jurisdiction on the courts of a 
Member State, are nonetheless derogations from that fundamental principle. 
Consequently, the special rules must be interpreted res trictively (per Fennelly J. in Leo 
Laboratories v. Crompton [2005] 2 IR 225 applying Case C -168/02 Kronhofer v. Maier ). 
In addition, the CJEU regards the special rules as exhaustively listing the exceptions to 
the general principle contained in Article 4(1 ) (see Réunion Europénne v. Spliethoff’s 
Bevrachtingskantoor BV Case C -51/97 at para. 16). This means, as the CJEU puts it, that 
the special jurisdictional rules cannot give rise to an interpretation going beyond the 
cases envisaged by the Recast Regulatio n itself. This is consistent with the requirement to 
give a restrictive interpretation to those rules.  
21. Further, even though these issues have arisen on an application brought by the second 
defendant, the onus remains on the plaintiff to establish the exception, i.e. that one of the 
special rules applies to the proceedings (see Hunter v. Gerald Duckworth & Co . [2000] 1 
IR 510 and Ewins v. Carlton  [1997] 2 ILRM 223). The second defendant, as a company 
domiciled in Sweden, had an expectation that any proc eedings brought against it would 
be brought before the Swedish Courts. If this is not to be the case, then the plaintiff must 
establish unequivocally that the Irish Courts have jurisdiction by showing that her claim 
comes within one of the exceptions.  
22. Finally, although not directly relevant to the issues the court has to decide, it is worth 
bearing in mind that the question of which court properly has jurisdiction is a separate 
one to which is the applicable law. When the CJEU considers the extent to w hich there is a 
“close connection ” between the court and the proceedings, one of the factors to which it 
has regard is the extent to which the law governing the dispute is the same or similar to 
the law of the jurisdiction in which the court is situated. I n this case, it probably makes 
little legal difference whether the claim against the first named defendant is made heard 
in Ireland or in Sweden since that claim is governed by the strict liability provisions of the 
Montreal Convention. However, there is n o evidence before the court as to whether 
Swedish law on occupier’s liability is similar to Irish law. For example, although the 
plaintiff has pleaded the case on the basis of a breach of statutory duty, manifestly the 
Swedish occupier of premises located entirely in Sweden cannot be made subject to the 
Occupier’s Liability Act 1995 simply because the plaintiff happens to be Irish. Irish 
legislation does not have an extraterritorial effect and it would give rise to significant legal 
uncertainty if the liabi lity of an occupier could vary depending on the domicile of persons 
who might happen to be present on the premises from time to time. Equally, the common 
law cannot be applied to the Swedish occupier of a premises located in Sweden, a civil 
law country, ju st because the plaintiff chooses to sue in Ireland. If, as the plaintiff claims, 
the Irish Courts have jurisdiction and especially if that jurisdiction arises solely because 
the plaintiff has sued the first defendant in this jurisdiction, then the effect w ill be to 
require the Irish Courts to apply Swedish law in order to determine the second 
defendant’s liability to the plaintiff.  
Article 7 of the Recast Regulation  
23. The plaintiff’s solicitor’s argument under Article 7(1) of the Recast Regulation is ten tative 
and can be dealt with shortly. He points to the fact that the price of the plaintiff’s 
electronic ticket from the first defendant includes amounts charged under the headings 
“Taxes, Fees, Other Charges ” and “ Domestic/International Fees ”. He then sta tes that it is 
unclear if these charges relate to services to be provided by the second defendant, i.e. 
the airport in which one of the plaintiff’s flights was due to land. Although he does not 
expressly say so, the solicitor is presumably suggesting that a contractual relationship 
might be inferred between the plaintiff and the second defendant by the inclusion in the 
ticket price paid by the plaintiff to the first defendant of a sum to cover services to be 
provided by the second defendant. The services ar e not identified nor the portion of the 
overall figures which might be ascribed to any service provided by the second defendant 
at Ostersund as opposed to services provided elsewhere or by third parties. Even without 
considering the second defendant’s repl ying affidavit on this point, merely suggesting that 
something which is unknown and unclear might provide a basis for ascribing jurisdiction 
to the Irish Courts cannot discharge the onus on the plaintiff to show unequivocally that 
the exception under Artic le 7(1) applies.  
24. However, the suggestion is demonstrably refuted in a replying affidavit sworn by Susanne 
Norman, the second defendant’s director of regional airports. She states categorically that 
the second defendant does not charge or collect from passengers using their airports any 
taxes, fees or other charges save for services specifically purchased by an individual 
passenger such as carparking. In addition, she points out that Article 7(1) does not confer 
jurisdiction generally based on the exist ence of a contract but confers jurisdiction on the 
courts of the place of performance of the obligations arising under the contract. 
Consequently, even if the second defendant could be characterised as having been in a 
contractual relationship with the pla intiff (which I do not believe to be the case), the place 
of performance of the relevant obligations under any such contract would be Ostersund in 
Sweden. This is clearly correct and there is no basis under Article 7(1) for the Irish Courts 
to assume juris diction of this dispute.  
25. The case made under Article 7(2) is somewhat different and focuses on identifying “the 
place where the harmful event occurred” . The argument made is that although the 
accident occurred in Sweden, the plaintiff travelled back to  Ireland and her claim for 
personal injuries, which relates to an on -going injury, continues in this jurisdiction. In 
argument, the plaintiff’s counsel relied on the decision of the CJEU in Case C -21/76 Bier. 
This case was taken by a horticultural producer  based in the Netherlands which was 
dependent on water from the River Rhine. An upstream pollution event in France in which 
an industrial installation discharged waste into the river caused damage to the 
horticultural produce and the producer was required to put expensive treatment in place 
in order to deal with the consequent pollution. An issue arose as to whether the French or 
the Dutch Courts had jurisdiction in respect of the subsequent claim. The CJEU held that 
where the place of the happening of an e vent and the place where that event results in 
damage are not identical, then the expression “t he place where the harmful event 
occurred ” covers both and the defendant can be sued at the plaintiff’s option in either 
place.  
26. However, subsequent case law  makes it clear that this does not allow a plaintiff simply to 
elect to sue in the place of the plaintiff’s domicile on the basis that he is suffering an on -
going loss or injury as this would be inconsistent with the fundamental principle under 
Article 4(1 ) that a defendant should be sued in the place of the defendant’s domicile. In 
Case C -364/93 Marinari , the CJEU held, at para. 14 of the judgment: - 
 “Whilst it has thus been recognized that the term ‘place where the harmful event 
occurred’ within the meani ng of [Article 8(2)] may cover both the place where the 
damage occurred and the place of the event giving rise to it, that term cannot be 
construed so extensively as to encompass any place where the adverse 
consequences can be felt of an event which has al ready caused damage actually 
arising elsewhere.”  
 On the facts of that case, an Italian plaintiff could not sue in Italy in respect of events 
which had taken place in a bank in the United Kingdom even though the claim included 
on-going financial damage all eged to result from these events.  
27. This point was reiterated in Case C -51/97 Réunion Europénne  (above), a case taken by 
insurance companies which had been subrogated to the claims of a French fruit company 
against a Dutch shipping company and an Austral ian transport company in respect of 
damage caused to 5,199 cartons of pears resulting from a breakdown in a cooling system 
while the pears were being transported from Australia to Rotterdam and onwards by road 
to France. Again, the issue was whether the Du tch or the French Courts had jurisdiction 
but this time in circumstances where the French Courts accepted jurisdiction against the 
Australian defendant whose contract included an obligation to deliver the fruit in France 
but declined jurisdiction in respec t of the Dutch defendants as their contracts did not 
provide for through transport. None of the defendants were domiciled in France.  The 
insurers argued that all of the defendants were involved in the same transport operation 
such that the disputes in whi ch they were involved were indivisible. The CJEU did not 
accept that the French Courts had jurisdiction on the basis that France was the place in 
which the damage was ascertained (the fruit being in sealed containers up to the point of 
delivery). It reason ed (at para. 34 of the judgment) that to allow the plaintiff to bring the 
carrier before the courts in the place where the damage was ascertained “w ould in most 
cases mean attributing jurisdiction to the courts for the place of the plaintiff’s domicile, 
whereas the authors of the Convention demonstrated their opposition to such attribution 
of jurisdiction otherwise than in the cases for which it expressly provides ”.    
28. Thus, it is clear from this line of authority that the ongoing consequences of a harm ful 
event which may be either ascertained or suffered on a continuing basis by a plaintiff in 
the jurisdiction of his or her domicile do not themselves constitute a harmful event giving 
the plaintiff an entitlement to sue in that jurisdiction. The damage r eferred to in the Bier 
judgment was direct damage sustained by the plaintiff albeit at a location physically 
removed from the place where the tortious act had taken place. This reasoning is 
consistent with the legal basis for the tort of negligence in this  jurisdiction. The tort 
comprises a negligent or careless action (or omission) in circumstances where a duty of 
care is owed and which causes damage. Until damage has been caused, the tort is not 
complete and no proceedings can be brought: once damage has been caused, the tort is 
complete and the plaintiff can sue. The tortfeasor is not guilty of a continuing tort merely 
because the plaintiff continues to suffer the consequences of his tortious action. In this 
case, assuming the plaintiff’s allegations agai nst the second defendant were to be borne 
out, then the second defendant committed the tort of negligence by allowing ice to be 
present on its premises which, in turn, caused the plaintiff to fall and injure herself. The 
tort was complete at that point and  did not continue even though the plaintiff continued 
to suffer its adverse consequences. Limitation periods will, by and large, run from the 
date of the defendant’s actions giving rise to the injury or harm. To suggest, as the 
plaintiff’s solicitor does, that there is a continuing tort or “ harmful event ” merely because 
the plaintiff remained under the care of her orthopaedic team until June, 2018 shows the 
absurdity of the proposition. On this analysis, the defendant would be continuously 
committing the to rt of negligence arising out of the presence of ice at its airport long after 
the summer sun had melted any ice even as far north as Ostersund. The limitation period 
would not run from the date of the accident but from whenever the plaintiff’s doctors 
signed her off as being fully recovered, which in the case of a permanent injury would 
mean the limitation period would run indefinitely.  
29. I have no doubt, on the facts of this case, that the alleged harmful event took place in its 
entirety at Ostersund Ai rport in Sweden in November, 2017. The plaintiff sustained a 
serious injury on that date, indeed, an injury sufficiently serious that it appears she cut 
short her trip and returned to Ireland a number of days earlier than she had originally 
planned. There is no basis for finding that the “ harmful event ” within the meaning of 
Article 7(2) occurred in this jurisdiction.  
30. Based on these conclusions, it is apparent that the Irish Courts did not have jurisdiction 
over the plaintiff’s claim against the second defendant on the grounds set out in the 
endorsement on the personal injury summons. The court must proceed to examine 
whether the Irish Courts have jurisdiction, as now claimed, under Article 8 of the Recast 
Regulation and, if so, whether this jurisdiction  existed or was required to exist at the time 
the plaintiff served the summons.   
Article 8 of the Recast Regulation  
31. The plaintiff’s claim under Article 8(1) can also be disposed of shortly. The basis for this 
claim, as deposed to by the plaintiff’s so licitor, is that the plaintiff has lawfully issued 
proceedings against the first defendant in this jurisdiction and, consequently, the claim 
against the second defendant which is “ closely connected ” to the claim against the first 
defendant ought to be hear d here. However, as the second defendant rightly points out 
Article 8(1) only applies in proceedings against a number of defendants which are brought 
“in the courts for the place where any one of them is domiciled ”. As both defendants are 
Swedish companies , neither of which is domiciled in Ireland, Article 8(1) has simply no 
application. Consequently, it is unnecessary to consider the extent to which the 
proceedings against the second named defendant are “ closely connected ” to those against 
the first. There  is, of course, an obvious connection between the two claims as both are 
brought by the plaintiff arising out of the same set of facts. On the other hand, the claim 
against the first defendant is based on strict liability under the Montreal Convention 
whereas the claim against the second defendant appears to be one in the nature of 
occupier’s liability and will be governed by Swedish law. Although not determinative, the 
CJEU regards the difference in the law to be applied to claims against two different 
defendants as a factor to be taken into account when deciding if those claims are closely 
connected for the purpose of affording jurisdiction. For the reasons already stated, the 
balance between these competing factors is not one that has to be drawn in the 
circumstances of this case.  
32. Whilst the plaintiff appeared to accept that she could not show either defendant to be 
domiciled in Ireland, nonetheless she argued that Article 8(1) should be applied because 
its purpose is to avoid irreconcilable judgments.  If the second defendant is correct, she 
would then have to issue separate proceedings against the second defendant in Sweden, 
giving rise to the potential for conflicting judgments in two different jurisdictions. It is an 
objective of the Recast Regulatio n, reflected in Recital 21, to minimise the possibility of 
concurrent proceedings and to ensure that irreconcilable judgments will not be given in 
different Member States. However, this is not an absolute requirement and, indeed, 
Article 30 expressly envis ages that related actions may be pending before the courts of 
different Member States. Article 30(1) gives any court, other than the one first seised, a 
discretion to stay its proceedings in those circumstances. Article 30(2) allows a court, at 
the invitat ion of any of the parties, to decline jurisdiction if the court first seised has 
jurisdiction over the actions and its law permits consolidation. It is significant that these 
powers are discretionary. Thus, Article 30 expressly recognises the possibility t hat 
notwithstanding the provisions of the Recast Regulation, related proceedings may co -exist 
in two or more jurisdictions and that while a court may stay its proceedings or decline 
jurisdiction in favour of the court first seised, there is no mandatory re quirement that it 
do so. I do not think that the general objective of avoiding irreconcilable judgments allows 
the court to give Article 8(1) the broad interpretation suggested by the plaintiff.  
33. I note the second defendant argues that there is no pote ntial for irreconcilable judgments 
since the plaintiff’s claim against the first defendant will be determined on the basis of 
strict liability under the Montreal Convention and the claim against the second defendant 
will be determined by reference to occup ier’s liability (governed by the law of Sweden). 
This is correct as regards the governing law, but I do not think that it eliminates the 
possibility of irreconcilable judgments entirely. In this case the potential is mainly factual 
as strict liability unde r the Montreal Convention applies only to the extent that the plaintiff 
is held to have been disembarking the aircraft when the accident occurred. As noted 
earlier, there is a grey area between a passenger being wholly on the aircraft and a 
passenger being  wholly within the airport. There is some possibility that different courts 
seised of related proceedings arising out of these facts would reach different conclusions 
as to when, as a matter of fact, the process of disembarkation was complete and by 
extens ion whether the plaintiff was in the process of disembarking when the accident 
occurred. In passing, I might observe that this possibility would also arise as between 
different courts in a single jurisdiction and not merely because the courts which might b e 
seised of the plaintiff’s claims against the first and the second defendant are in different 
jurisdictions. As it happens, it is simply not possible to comment on this matter further 
because of the manner in which the plaintiff has pleaded the case and t he fact that she 
has not replied to the particulars raised by either defendant seeking to ascertain exactly 
where the accident occurred. Again, this is not a matter I need to consider in 
circumstances where I do not have to address whether the claim agains t both defendants 
is in fact “ closely connected ” since the other conditions for the application of Article 8(1) 
are not met.  
34. Article 8(2) presents a more complex problem. Under that provision, the second 
defendant can be sued as a third party before t he Irish Courts, being the courts seised of 
the “original proceedings ”. There is an exception to this if the court were to take the view 
that these proceedings had been issued in Ireland solely with the objective of removing 
the second defendant from the j urisdiction of the Swedish Courts which would otherwise 
be competent. I am satisfied that these proceedings were not instituted solely for that 
purpose. There are many perfectly legitimate and practical reasons why someone injured 
on an aircraft would wish  to prosecute any resulting claim before their national courts 
and, of course, the plaintiff was entitled under Article 33(2) of the Montreal Convention to 
sue the first named defendant in this jurisdiction.  
35. Indeed, the second defendant does not sugge st that the plaintiff’s proceedings were 
brought in Ireland with any such ulterior motive. Instead, the second defendant argues 
that it is simply not open to the plaintiff to rely on Article 8(2). That provision is one 
which gives a defendant in existing p roceedings the right to have connected third party 
proceedings determined by the courts which have jurisdiction over the original 
proceedings. This is in ease of a defendant, which generally will have little or no say over 
the jurisdiction in which it is s ued and enables that defendant to have all issues in 
connected proceedings resolved before the courts of a single jurisdiction. It does not 
permit a plaintiff to sue a defendant over whom the Irish Courts have no jurisdiction in 
the hope or expectation tha t a co -defendant, properly before the Irish Courts, will bring 
third party proceedings thereby legitimising the presence of the defendant who is not 
otherwise properly sued here. I think this argument is fundamentally correct.  
36. Bearing in mind that the  special rules exhaustively list the exceptions to the general 
principle that a defendant should be sued where it is domiciled (Article 4(1)) and the need 
to give a restrictive interpretation to such derogations, I do not accept the plaintiff’s 
argument th at the potential from the outset for third party proceedings between 
defendants whom the plaintiff wishes to sue jointly is sufficient to bring the proceedings 
within the scope of Article 8(2). If the plaintiff’s argument were correct, then the 
distinction  between Article 8(1) and Article 8(2) would be significantly elided and the 
requirement in Article 8(1) that at least one of the co -defendants be domiciled in the 
jurisdiction would be rendered superfluous. The plaintiff could sue all defendants in the 
courts of any Member State in which any one of them might be properly sued. Such an 
interpretation goes well beyond the cases envisaged by the Recast Regulation itself.   
Amendment of endorsement  
37. In light of these conclusions I have considered whether th e endorsement on the personal 
injury summons can be amended as requested by the plaintiff. I note that in Abama v. 
GAMA  [2015] IECA 179, the Court of Appeal upheld a High Court decision which allowed 
an amendment of a summons to include an endorsement show ing jurisdiction under the 
precursor to the Recast Regulation. The ground of jurisdiction sought to be introduced 
was one available to the plaintiff at the time the proceedings were issued but had not 
been relied on at that time. I accept the plaintiff’s a rgument that, in principle, an 
endorsement made on a summons for the purposes of showing jurisdiction under the 
Recast Regulation can be amended. However, it does not follow from the fact that an 
endorsement can be amended that an amendment should necessar ily be made in this 
case.  
38. The second defendant argues, based on the decision of the House of Lords (Lord Steyn) in 
Canada Trust Co v. Stolzenberg  [2000] 4 All ER 481, that the relevant date for deciding 
whether an amendment is open to the plaintiff is  the date on which the summons was 
issued and not any later date.  The issue arose in Canada Trust  because the plaintiff 
sought to sue a number of defendants before the UK courts of whom only one was 
domiciled in the UK at the time the proceedings were iss ued. That defendant evaded 
service and subsequently left the UK without having been served. Some of the other 
defendants challenged the jurisdiction of the UK courts on the grounds that the relevant 
defendant had not been domiciled in the UK on the date on  which they were served. It 
was held that the relevant date upon which one of the defendants had to be domiciled in 
the UK in order to avail of a provision akin to Article 8(2) under the Lugano Convention 
was the date on which the proceedings were issued a nd not the date of subsequent 
service.  The House of Lords noted that the CJEU had held that the concept of “ initiation 
of proceedings ” was not a single autonomous concept under EU law such that identifying 
the point at which proceedings were “ definitively  brought ” in order for a national court to 
be seised of them was a matter for national law.  
39. The particular difficulty which arose in Canada Trust  does not arise in this case since the 
proceedings were both issued and served, a conditional appearance entered and this 
motion brought before the service of a notice of indemnity and contribution by the first 
defendant, being the circumstance on which th e plaintiff now relies to claim jurisdiction 
under Article 8(2). Nonetheless, the rationale underlying the decision in Canada Trust  is 
important because it emphasises the need for the court to have jurisdiction in respect of 
the claim at the time the proce edings are brought (however that may be defined). In my 
view, the Irish courts did not have jurisdiction over the plaintiff’s claim against the second 
defendant at the time the proceedings were instituted nor indeed at the time the 
proceedings were served.  The potential for such jurisdiction is not sufficient to actually 
give the Irish courts jurisdiction as it is inherently uncertain.  What would be the position 
if the plaintiff had endorsed the summons under Article 8(2) from the outset and the first 
defendant had elected not to seek an indemnity or contribution from the second 
defendant?  Would the Irish courts still have jurisdiction over the plaintiff’s claim against 
the second defendant?  Did they ever have such jurisdiction? These questions are 
necess arily abstract because the first defendant has in fact served a notice of indemnity 
and contribution so it is now necessary to consider the effect of that on the plaintiff’s 
proceedings.  
40. The plaintiff now seeks to amend the endorsement to include a re ference to Article 8(1) 
and (2) in addition to Article 7. In my view, an amendment to include a reference to 
Article 8(1) would not be of assistance as, for the reasons already set out, the Irish courts 
do not have jurisdiction under that provision. I have  also come to the view that I should 
refuse the plaintiff’s request to amend the endorsement to include a reference to Article 
8(2). This is for two reasons. Firstly, the plaintiff cannot invoke Article 8(2) so as to 
confer jurisdiction upon the Irish cour ts in respect of her claim against the second 
defendant. The first defendant may be able to rely on that provision as regards a third -
party claim (more of which below), but not the plaintiff. The Article is based on the 
bringing of a third party claim in t he context of “ original proceedings ”.  In this case the 
plaintiff’s claim against the first defendant is the “ original proceedings ” in which the first 
defendant may move against the second defendant.  However, the plaintiff’s proceedings 
themselves cannot constitute both the original proceedings and the third -party 
proceedings and to allow the plaintiff to treat them as such would again elide the 
distinctions carefully drawn in the Recast Regulation.  
41. Secondly, the purpose of the endorsement is linked n ot only to jurisdiction but also to 
service. Proceedings in respect of which the Irish Courts have jurisdiction under the 
Recast Regulation can be served out of the jurisdiction without leave of the court under O. 
11A(2)(a) of the Rules of the Superior Cou rts. The endorsement establishes the existence 
of such jurisdiction at the time the summons is issued and served. Here, there was no 
basis for asserting that such jurisdiction existed at the time the summons was issued nor 
at the time the summons was serve d. Unlike the situation in Abama v. GAMA  (above), the 
jurisdiction now claimed under Article 8(2) did not exist at the material time. In my view, 
the summons cannot now be amended so as to retrospectively show a basis for 
jurisdiction which did not exist a t the time the summons was served. Put simply, the 
plaintiff was not entitled to serve these proceedings on the second defendant pursuant to 
O. 11A because, at the time such service was effected, the Irish Courts did not in fact 
have jurisdiction over the plaintiff’s claim against the second defendant. In this regard the 
problems which the second defendant has identified in relation to the service of the 
proceedings upon it are not of a nature that can be readily cured by means of an 
amendment to the summon s or by  deeming  the defective service good. The issues 
raised are fundamental and go to the jurisdiction of the court. In my view, an amendment 
which would allow it to be asserted that jurisdiction existed at a time when it did not and 
on a basis which d id not exist at the time of service is not one which should be allowed.  
Third party proceedings  
42. Where then does that leave the claim which the first defendant wishes to make against 
the second defendant and in respect of which the first defendant has served a notice of 
indemnity and contribution? It is notable that the notice of indemnity and contribution 
was served only after the second defendant had brought this motion and the plaintiff’s 
solicitor had sworn an affidavit identifying the possibility t hat the first defendant might 
seek an indemnity and/or a contribution from the second defendant. Nonetheless, even if 
the first defendant’s actions in this regard were prompted by the second defendant’s 
motion or the plaintiff’s solicitor’s suggestion, it does not take away the first defendant’s 
entitlement in principle to bring third party proceedings against the second defendant 
arising out of the plaintiff’s claim against it before the Irish Courts. This can be done by 
way of a third -party application in  these proceedings or by way of separate proceedings 
(see Sovag  Case C -521/14).  As previously noted, the endorsement on the notice of 
indemnity and contribution invokes Article 8(2) which is of course apposite in 
circumstances where the first defendant wi shes to bring a third party claim against the 
second defendant in the context of the plaintiff’s original proceedings.  
43. However, I do not think that this fully resolves the issues raised on this motion. The 
second defendant’s motion seeks two reliefs: f irstly, an order setting aside service on it of 
the personal injury summons and, secondly, an order striking out the proceedings against 
it on grounds of want of jurisdiction. As I have found that the Irish courts do not have 
jurisdiction in respect of the  plaintiff’s claim against the second defendant on any of the 
grounds endorsed on the summons or on any of the additional grounds advanced by the 
plaintiff in the course of this motion (at least not at the suit of the plaintiff), it follows that 
the servic e of the personal injury summons on the second defendant pursuant to O. 11A 
was legally defective.  As the defects are ones which go to jurisdiction such service must 
be set aside. The second defendant is not and never was properly before the Irish courts 
at the suit of the plaintiff. The second defendant never submitted to the jurisdiction of the 
Irish courts, having filed only a conditional appearance for the purpose of contesting 
jurisdiction and having brought this motion in that context. Thus, the seco nd defendant 
was not properly a party to these proceedings at the time the first defendant served the 
notice of indemnity and contribution upon it.  
44. Under O. 16, r. 12, a defendant claiming an indemnity or contribution against another 
defendant may, wi thout leave of the court, issue and serve on the other defendant a 
notice of indemnity and contribution. No appearance to such notice is necessary, 
presumably because the other defendant is already a party to the proceedings in which 
the notice has been se rved. The default position pursuant to O. 16, r. 12(2) is that unless 
the court directs otherwise, the claim, question or issue between the defendants should 
be tried at or after the trial of the plaintiff’s action. It is a precondition of the valid servic e 
of a notice of indemnity and contribution under this rule that the party on whom the 
notice is served is already a party to the proceedings. Where an existing defendant wishes 
to make a claim for an indemnity or contribution against a person who is not a lready a 
party to the action, then he must seek the leave of the court to issue and serve a third 
party notice pursuant to O. 16, r. 1. I think it necessarily follows from this that the notice 
of indemnity and contribution served by the first defendant on the second defendant is 
also legally defective.   Whilst this has come about through no fault of the first defendant, 
the notice of indemnity and contribution was served on the second defendant at a time 
when it had expressly declined to submit to the juri sdiction of the Irish courts and 
consequently the entitlement of the first defendant to serve the notice was always 
conditional on the outcome of the second defendant’s motion.  For the reasons discussed 
above in relation to the availability of Article 8(2 ), I do not think that the service of a 
third-party notice on the second defendant at a time when the second defendant was not 
properly the subject of the plaintiff’s proceedings can retrospectively overcome these 
difficulties.  
Conclusions:  
45. I recognis e that the logical result of this analysis is in many respects unsatisfactory. 
Leaving aside whether the first defendant should be classified as a “ wrongdoer ” when 
subject to strict liability, the first defendant has a statutory right under s. 21 of the Ci vil 
Liability Act, 1961 to seek a contribution from the second named defendant as an alleged 
concurrent wrongdoer in respect of the damage sustained by the plaintiff. The first 
defendant also has an entitlement under Article 8(2) of the Recast Regulation t o bring 
third party proceedings against the second defendant before the Irish courts which are 
seised of the original dispute between the plaintiff and the first defendant. However, as 
the second defendant is not currently properly before the Irish courts,  the first defendant 
cannot rely on steps taken by it on the false assumption that the second defendant was 
lawfully an existing co -defendant to the plaintiff’s proceedings. It remains open to the first 
defendant to take appropriate steps against the secon d defendant and to bring the second 
defendant properly before the Irish courts should it wish to do so and subject, of course, 
to any procedural or temporal rules that might apply.  
46. In the context of this application, I will grant the second defendant both orders sought in 
its notice of motion, namely an order setting aside the service upon it of the personal 
injury summons and an order striking out the proceedings as against the second 
defendant for want of jurisdiction.