GIRVAN J
INTRODUCTION
1. This is an appeal from an order of the Master (Chancery) made on
23 June 1998 dismissing with costs the action instituted by L. Ltd ("the
plaintiff") by writ of summons issued in February 1998. The defendants
in the action, M and S.M Ltd("the defendant company") made application
to the Master by summons dated 1 May 1998 for an order to strike out
the proceedings or otherwise that they be stayed on the ground that
there was pending in the High Court in the Republic of Ireland an action
between the plaintiff and the defendants involving the same causes of
action and/or the same subject matter of dispute and on the ground that
the action was frivolous, vexatious and an abuse of the process of the
court.
2. On the hearing of the appeal Mr Morgan QC appeared with Mr
Cregan on behalf of the plaintiff, being the appellant, while Mr Stephens
QC appeared with Mr Millar on behalf of the defendants being the
respondents to the appeal.
3. The appeal has raised a number of interesting and difficult points
on the effect and interpretation of provisions of the Convention on the
Jurisdiction and Enforcement of Judgments in Civil and Commercial
Matters 1968 ("the Brussels Convention") in the context of the present
proceedings.
THE IRISH PROCEEDINGS
4. Central to the defendants' case seeking to have the present Northern
Ireland proceedings struck out is the proposition that in the Northern
Ireland proceedings the plaintiff is in effect seeking to assert causes
of action which were already before the Irish High Court on foot of
proceedings instituted in the Republic of Ireland. It is thus necessary to
consider in some detail the rather complicated background to the Irish
proceedings.
5. The Irish proceedings were instituted by a plenary summons issued on
25 April 1997. Since the precise wording of the Irish plenary summons
is material the entirety of the indorsement to the summons is set out in
Annex 1 to this judgment. M., the first defendant in the Irish proceedings,
a US citizen, resides and carries on business in Denver, Colorado in
the United States of America. The defendant company and P.Oil and
Gas Ltd likewise were based in Denver, Colorado. When the plenary
summons was issued it was considered that the court had power to hear
and determine the plaintiff's claim under the provisions of the Brussels
Convention, though this appears to have been misconceived in view
of the place of residence and domicile of the first, second and third
defendants. The fourth defendant in the proceedings was the Minister for
Transport, Energy and Communications (" the Minister") who obviously
was domiciled and resident within the jurisdiction of the Irish High Court.
Subsequently by an ex parte motion under Order 11 of the Irish Rules
of the Superior Courts (which is essentially similar to Order 11 of the
Rules of the Supreme Court in this jurisdiction) the plaintiff sought
leave to serve the proceedings on the first three defendants out of the
jurisdiction. The grounding affidavit sworn by the plaintiff's solicitors is
particularly lacking in particularity stating in paragraph 4 that the plaintiff
had initiated proceedings against the first named defendant for various
relief including damages for breach of contract, breach of confidential
information, breach of fiduciary duties, for conspiracy and conversion by
the second and third defendants and an injunction to restrain any further
steps being taken to obtain the grant of a petroleum prospecting licence
which it was alleged the Minister was about to issue to the defendants.
Paragraph 9 of the affidavit states:-
"I say that the Court should permit service out of the jurisdiction of the
originating summons in this matter because
(a) the whole subject matter of the action is land situate or partly situate
within the jurisdiction;
(b) the action is one brought inter alia to enforce a contract which was
made within the jurisdiction;
(c) the action is founded on a tort committed within the jurisdiction;
(d) an injunction is sought to prevent wrongful acts being committed
within the jurisdiction;
(e) the first, second and third defendants reside out of the jurisdiction and
are necessary and proper parties to the action."
6. The words in italics in sub para (b) appear to point to an intention by
the plaintiff to assert other claims apart from breach of contract and as
noted the writ includes claims for breach of confidentiality and breach
of fiduciary duties (which are equitable wrongs rather than torts stricto
sensu).
7. Leave having been granted to serve out of the jurisdiction, the
defendants entered unconditional appearances to the plenary summons
and thereby submitted to the jurisdiction of the court. They did not apply
to strike out those parts of the plenary summons which went beyond
the causes of actions which it would have been permissible to pursue
under Order 11. Two consequences flow from this. Firstly, the defendants
accepted the jurisdiction of the Irish court to grant relief in accordance
with the width of the claim. Secondly, it was open to the plaintiff to
pursue its claim against the defendants in accordance with the width of
the relief sought in the plenary summons.
8. The plaintiff company brought an interlocutory application for
an interlocutory injunction to restrain the Minister from granting a
petroleum licence to the first, second and third defendants and to restrain
the defendants from taking any further steps to obtain a petroleum
prospecting licence. It also claimed in wide terms an injunction restraining
M. from "breaching her contract with the company and breaching her
fiduciary duties as a director of the plaintiff."
9. The Minister by notice of motion dated 25 July 1997 sought a
mandatory injunction pending the trial directing the plaintiff company to
deliver to the Minister all seismic field tapes in its possession, power and
procurement that were created during the exploitation of Irish Onshore
Petroleum Exploration Licence No 280 and pertaining to that part of the
area known as the N.W. Ltd Carboniferous Basin ("NWCB") within the
jurisdiction of the State and a mandatory injunction pending the trial of
the action directing the plaintiff company to release all such tapes to the
Minister.
10. Numerous and lengthy affidavits with voluminous exhibits were
put before the High Court in Dublin in relation to those applications.
A judgment was delivered on 8 August 1997 by Laffoy J. She declined
to grant either the mandatory injunctions sought by the Minister or
the injunctions sought by the plaintiff. She considered that the plaintiff
would be adequately compensated in damages and that quantification
of such damages would be possible. She further considered that a cross
undertaking in damages by the plaintiff company would not be adequate.
SUMMARY OF THE PLAINTIFF'S CASE IN THE IRISH PROCEEDINGS
11. The affidavit evidence and supporting exhibits were formulated in the
context of the interlocutory applications themselves and must be read
accordingly. (..) In his first affidavit sworn on 13 May 1997 K. set out
the background to the proceedings brought by the plaintiff company in
some detail. For present purposes the plaintiff's case at this stage can be
summarised as (..) follows.
12. The plaintiff company was incorporated in Northern Ireland in
April 1981, originally being called U.N.R. Ltd, changing that name to
the present name in July 1991. It was formed to carry out petroleum
exploration activities in Northern Ireland and in the Republic of Ireland
and elsewhere. It became active in exploration work in Northern Ireland in
the mid 1980s.
13. The shares in the plaintiff company are held as to 10.28% by Mr K.
and the balance is held by a separate company in Northern Ireland called
U.N.R. Ltd (the name which the plaintiff company had ceased to use in
1991.) The shares in that latter company are held on a 50/50 basis by K.
and the first named defendant M..
14. An area of land which straddles the border between Northern Ireland
and the Republic known as the NWCB (stretching from Counties Donegal
and Mayo in the west to Counties Cavan, Monaghan and Armagh in the
east) was believed to have the potential for petroleum deposits and had
been the subject of prospecting in the years from 1960 onwards. M.P.Corp
originally carried out extensive drilling in the area. K. became involved
with a number of Denver based companies conducting an enquiry into
Irish onshore exploration in NWCB. In 1980 negotiations with the Minister
in Dublin and the Department of Economic Development in Belfast for the
granting of petroleum prospecting licences in the Republic and in Northern
Ireland were entered into and K. was able to negotiate with M.P.Corp
to acquire its exploration data. K. then became involved with M.P. plc in
negotiations for a petroleum prospecting licence for a contiguous area of
the NWCB and he secured the involvement of N.W. Ltd and A.E. plc. He
became managing director of N.W. Ltd and a joint venture, A.O Ltd, was
formed in conjunction with A.E. plc. In 1982 K. met M. who carried on
consultancy work for N.W. Ltd at various times. Consequent on the expiry
of the NWCB licences NW needed to acquire a petroleum licence interest
in order to comply with stock exchange listing requirements. In 1987 K.
was involved in an application in respect of a substantial area of Northern
Ireland in Counties Antrim and Londonderry. On the expiry of the terms
of that licence a new licence was issued in 1988 for a smaller area, that
licence bearing the number PL9/88. In 1989 N.W. Ltd's new management
decided to discontinue petroleum exploration work. NW agreed to sell to
K. its petroleum assets comprising the licence PL9/88, seismic and other
exploration data including well reports, consultants' reports etc relating to
NWCB and the area covered by licence PL9/88. K. in his affidavit alleged
that he decided that all the data and related material would remain
where it was at that time. Data in the possession of M. remained in her
possession and other data in store in England with H. was to remain
where it was. K. asserted that he was the sole authorised signatory for
the H. store material.
15. In December 1990 K. assigned the data to the plaintiffs. K. states
that the principal objective of the plaintiff was to further the exploration
programme in the area covered by PL9/88 and in the NWCB areas. Since
late 1995 the plaintiff's exploration activities have been confined to
seeking exploration partners who might be interested in entering into
joint ventures in any area in which the plaintiff has exploration experience
and data, the main areas being PL9/88 in Northern Ireland and the NWCB
(which is partly in Northern Ireland and partly in the Republic).
16. On 25 July 1991 M. entered into a 3 year consultancy agreement with
the plaintiff company. The consultancy agreement in clause 3.1 provided:-
"The consultant shall not except as authorised or required by her duties
reveal to any person or persons or company any of the trade secrets
or confidential operations, processes or dealings or any information
concerning the organisation business financial transactions or affairs
of the company which may come to her knowledge during the period
of this agreement hereunder and shall keep with complete secrecy all
confidential information entrusted to her and shall not use or attempt to
use any information in any manner which might injure or cause loss either
directly or indirectly to the company or its or their businesses or may be
likely so to do."
17. In October 1995 M. informed K. that she was helping a Denver
company P. as it was considering carrying out an economic study of
the NWCB gas reserves and that P. wanted access to relevant seismic
data for NWCB to carry out its study. She asserted that the Department
of Economic Development should have the information and that the
plaintiff should not charge P. for that information. In December 1995
the Department informed the plaintiff that it had received application for
petroleum licences in Counties Fermanagh and Tyrone. They called on the
plaintiff to produce the M.P. plc seismic data of 1982. In January 1995
M. informed K. that she wanted to concentrate her work in Ireland on
NWCB, that they should terminate their relationship in U.N.R. and that K.
could work in the Lough Neagh area (PL9/88). No agreement was reached
on that and K. went to the Middle East in January 1996. On his return
in February he learned from the Department of Economic Development
that it had been in touch with M.. M. had agreed to the Department's
request for copy seismic data. According to K. it transpired that M. had
given instructions to H. to release information relating to seismic data to
the plaintiff and that M. had persuaded H. that she was authorised to give
instructions for the release of the information. He also alleges that M. had
given instructions to H. to release data even before the department had
written its letter to the plaintiff company to which M. was purporting to
respond. Paragraph 35 of K.’s affidavit is material and states:-
"I subsequently made further enquiries and I was able to establish in the
first or second week of July 1996 that the DOED had given instructions
of its intention to grant seven petroleum licences in Counties Fermanagh,
Tyrone and Armagh, this being the general NWCB area within Northern
Ireland, as far back as 22 March 1996. It was later brought to my
attention that the DOED had, by means of an advertisement which
appeared in the Belfast Gazette on 19 July 1996 announced that it had
granted these licences to the second and third named defendants....Based
on my knowledge of licence application processing procedures within
the DOED it is clear that the first and second named defendants were
engaged in discussions with the DOED and possibly also the Department
of Transport, Energy and Communications within the Republic of Ireland,
for several months before the plaintiff became aware of these activities,
and before the first named defendant approached me on 1 January
1996 with her suggestion that she and (the plaintiff) would confine
their exploration activities to the NWCB and the Lough Neagh basin
respectively."
18. On 2 July 1996 an advertisement appeared in the Irish Independant
Newspaper stating that the Minister intended to grant a non-exclusive
petroleum prospecting licence to S.M. Ltd and P. for certain lands in
Counties Cavan, Leitrim, Roscommon, Sligo and Monaghan lying within
NWCB. K. asserted that in applying for the licence M. was in breach of
contract and in breach of her fiduciary duties as a director of U.N.R. In
paragraph 45 of the affidavit K. deposed:-
"I say and believe and am advised that the actions of the first named
defendant amount to a clear breach of her consultancy agreement
with the plaintiff and in particular the terms relating to confidential
information. I also say that her actions are a clear breach of her fiduciary
duties to the plaintiff company. I say that it is clear that the first named
defendant has not been acting in good faith towards the plaintiff and has
not been acting in the best interests of (the plaintiff company). Further I
say that the first named defendant has exercised her powers for purposes
other than those for which they were conferred. I say that the first named
defendant has put herself into a conflict of interest situation where her
interests and those of the plaintiff have diverged."
19. In paragraph 49 K. asserted that:-
"The above activities which are set out in this affidavit clearly show that
the plaintiff is gravely prejudiced by the activities of the first, second and
third named defendants. The activities in particular of the first named
defendant, show that she has breached her contract with the plaintiff,
that she has breached her fiduciary duties to the plaintiff, that she has
sought to convert confidential and proprietary company information
to her own use and that she has deprived the plaintiff of a corporate
opportunity to which it is entitled. In addition, the activities of the first
three defendants raise causes of action for breach of contract, breach of
confidential information, breach of fiduciary duties, conspiracy, damages,
conversion and the other relief set out in the plenary summons."
THE ISSUE OF SECURITY FOR COSTS IN THE IRISH PROCEEDINGS
20. By notice of motion dated 30 June 1997 M. and the defendant
company made application to the High Court pursuant to Order 29 of the
Irish Rules for an order requiring the plaintiff to give security for costs and
staying the proceedings until security was given. By second notice of the
same date P. likewise sought an order for security.
21. On 27 August 1997 Laffoy J ordered that the plaintiff should provide
security for costs.
22. Subsequently an application was made to fix the amount of
the security for costs which were on 23 January 1998 assessed at
[sterling]128,000 and ordered to be paid within six weeks. Even on the
plaintiff's case it was recognised that the defendants' costs of the trial
would be very substantial (estimated to exceed [sterling]320,000).
23. Subsequently by notice of motion dated 2 April 1998 the defendants
sought an order striking out the plaintiff's claim for want of prosecution by
reason of failure to deliver a statement of claim and in the alternative an
order striking out the plaintiff's claim by reason of the plaintiff's failure to
provide security for costs in accordance with the orders of 23 August 1997
and 23 January 1998.
24. By an order of O'Sullivan J made on 12 June the court struck out
the plaintiff's claim by reason of its failure to comply with the order
for security for costs. The plaintiff has appealed to the Supreme Court
against that order by notice of July 1998. I was informed that the appeal
is scheduled for hearing in the course of February 1999.
THE INSTITUTION OF THE NORTHERN IRELAND PROCEEDINGS
25. In February 1998 while the Irish proceedings were still proceeding
and close to the expiry of the time limit for the provision of security for
costs the plaintiff issued a writ in Northern Ireland. Since the full wording
of the Northern Ireland writ is significant it is set it out in Annex 2 to this
judgment.
26. By summons issued in May 1998 the defendants in the Northern
Ireland proceedings applied to the Master (Chancery) for an order that
the proceedings be dismissed or stayed on the ground that there were
pending proceedings in the Irish High Court and on the basis that the
Northern Ireland proceedings were an abuse of process.
27. The plaintiff's solicitor, an associate partner in Wilson and Nesbitt in
her affidavit stated that it was clear from the plenary summons in the
Irish proceedings that the primary objective of the proceedings in Dublin
was to avoid any petroleum prospecting licence being granted to the
second or third defendants and stop the first defendant taking any steps
which may or were likely to facilitate or assist in the granting of any such
licence. She went on to state (presumably on the basis of instructions):-
"Both sets of proceedings in Northern Ireland and the Republic of Ireland
relate to the distribution and passing on of information relating to seismic
field tapes and associated documentation, information and exploration
data relating to the N.W. Ltd Carboniferous Basin of Ireland."
28. In paragraph 10 she asserted that:-
"The areas of the NWCB that are within Northern Ireland fall within the
jurisdiction of the Courts in Northern Ireland and not the jurisdiction
of the Courts of the Republic of Ireland. By virtue of its geographical
location, all seismic data and information relating to the Northern Ireland
section of the NWCB has been obtained within Northern Ireland."
THE GROUNDS RELIED ON TO STRIKE OUT THE NORTHERN IRELAND
PROCEEDINGS
29. Mr Stephens in his argument put forward a number of alternative
grounds to uphold the Master's decision to dismiss the action. Firstly, he
argued that the Northern Ireland proceedings fell within article 21 of the
Brussels Convention and that the court should decline jurisdiction on the
basis of lis alibi pendens. Secondly, in the alternative the case fell within
article 22 of the Convention and the court should decline jurisdiction.
Thirdly, the judgment of O'Sullivan J should be recognised under article
26 of the Convention. Fourthly, the Court should decline jurisdiction on
common law principles as set out in MacShannon v Rockwear Glass Ltd
[1978] 1 All ER 625. Fifthly, the matter was res judicata. Alternatively, the
action should be struck out as an abused process under Order 18 rule 19
or under the inherent jurisdiction of the Court.
30. Mr Stephens contended that the proceedings in the Republic
encompassed all the alleged breaches of contract and breaches of
fiduciary duty that the plaintiff had and he called in aid the European
Court of Justice ruling in Gubisch v Giulio Palumbo (Case 114/86) [1987]
ECR 4861 ("Gubisch"). A consideration of the Irish plenary summons,
the affidavits and the Northern Ireland writ revealed the common nature
of the proceedings north and south. If the causes of actions were not
the same for the purposes of article 21 then the two sets of proceedings
raised related issues for the purposes of article 22. Under ordinary
domestic law principles the Northern Ireland proceedings were an abuse
of process being an attempt to evade the order of the Irish Court and
to avoid the results of litigation in another jurisdiction. The plaintiff's
proceedings resulted in the defendants incurring considerable costs and
expenses which the defendants have no prospect of recovering from
the plaintiff company. The plaintiff has started fresh proceedings in
Northern Ireland knowing full well that it cannot pay the defendants'
costs if the defendants are successful. The court would inevitably direct
security for costs against the plaintiff which the plaintiff would not be
able to pay. In the result the proceedings in Northern Ireland are in a
practicable sense hopeless. Mr Stephens contended that the Court could
impose terms on the plaintiff if it were permitted to proceed with the
action. Thus an "unless" order could be expressed in terms that unless
the plaintiff company gave security for costs in the same sum as in the
Dublin proceedings and undertook to provide suitable guarantees to
indemnify the defendants in relation to losses caused by the proceedings
the plaintiff's claim should be struck out.
31. In opposing Mr Stephen's submissions Mr Morgan contended that the
claims in paragraphs 7, 8 and 9 of the indorsement were in respect of
matters arising in relation to the prospecting licence made in the Republic
of Ireland. The Dublin proceedings related to what had happened in the
Republic or was likely to happen there. The Northern Ireland proceedings
relate to what has happened in Northern Ireland. The licensing authorises
were different in the two jurisdictions, the geographical areas were
different, the remedies were different and the owner of the prospecting
rights were different (the State in the Republic and the Crown in Northern
Ireland). The argument that the plaintiff should have brought forth its full
claim in the Republic proceedings was misconceived.
THE RELEVANT CONVENTION PROCEEDINGS
32. By virtue of article 1 of the 1978 Accession Convention entering
into force in January 1987 in accordance with article 39 the United
Kingdom on an international level acceded to the Convention on the
Jurisdiction and Enforcement of Judgment in Civil and Commercial Matters
known as the Brussels Convention having been signed at Brussels in
September 1968. By the Civil Jurisdiction and Judgments Act 1982
the United Kingdom incorporated the Convention directly into United
Kingdom law and section 51(1) applied the Act to Northern Ireland.
Where proceedings fall within the scope of the Convention it is mandatory
for the court to apply the Convention and its obligation does not depend
on the matter having been pleaded by either party in the proceedings.
33. Article 1 defines the subject matter of legal relations to which the
Convention is applicable viz civil and commercial matters. Revenue,
customs and administration matters are inter alia excluded.
34. Section 8 of the Convention entitled "Lis Pendens/Related Actions"
contains articles 21, 22 and 23 of which articles 21 and 22 are of
relevance in the present context.
35. Article 21 of the Convention was amended by the 1989 Accession
Convention and now provides:-
"(1) 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 stay its
proceedings until such time as the jurisdiction of the court first seised is
established.
(2) Where the jurisdiction of the court first seised is established, any court
other than the court first seised shall decline jurisdiction in favour of that
court."
36. Article 22 provides:-
"Where related actions are brought in the courts of different Contracting
States, any court other than the court first seised may, while the actions
are pending at first instance, stay its proceedings.
A court other than the court first seised may also on the application of
any of the parties decline jurisdiction if the law of that court permits the
consolidation of related actions and the court first seised has jurisdiction
over both actions.
For the purposes of this article, actions are deemed to be related where
they are so closely connected that it is expedient to hear and determine
them together to avoid the risk of irreconcilable judgments resulting from
separate proceedings."
37. Title III of the Convention (entitled Recognition and Enforcement)
contains provisions relating to the mutual recognition of judgments
between Contracting States. In this context "judgment" is defined as any
judgment given by a court or tribunal of a Contracting State, whatever
the judgment may be called, including a decree, order, decision or writ of
execution as well as the determination of costs or expenses by an officer
of the court.
38. Article 26 provides that a judgment given in a Contracting State
should be recognised in the other Contracting States without any
special procedure being required and any interested party who raises
the recognition of a judgment as the principle issue in a dispute may
apply for a decision that the judgment be recognised. Article 27 sets
out the circumstances in which a judgment will not be recognised.
Article 29 provides that under no circumstances may a foreign judgment
be reviewed as to its substance. Article 30 provides that a court of a
Contracting State in which recognition is sought of a judgment given in
another Contracting State may stay the proceedings if an ordinary appeal
against the judgment has been lodged.
THE ISSUE UNDER ARTICLE 21 OF THE CONVENTION
39. Whilst article 21 is limited to concurrent proceedings in Contracting
States it is not limited to proceedings under the bases of jurisdiction
set out in the Convention. It applies where proceedings involve the
same cause of action and proceedings have been commenced in two
Contracting States under their traditional rules of jurisdiction. The
European Court of Justice ("the ECJ") held in Overseas Union Insurance
Ltd v New Hampshire Insurance Co [1992] 2 WLR 586 that there is
no requirement that either party be domiciled in a Contracting State.
Hence, in the present case the fact that the defendants in the Northern
Ireland proceedings, being two of the defendants in the proceedings in
the Republic, are domiciled in Colorado is irrelevant to the obligation of
the court in this jurisdiction to decline jurisdiction under article 21 if the
matter falls within that provision.
In Gubisch there was a dispute between Gubisch, a German company, and
an Italian relating to a contract of sale. The Italian brought proceedings
in Rome for a declaration that the contract was inoperative having
been revoked or that it should be set aside or treated as discharged by
reason of Gubisch's non-delivery of goods within the specified time. The
German company on the other hand, had previously begun proceedings
in Germany seeking payment under the contract. The European Court
ruled that article 21 applied to cover a case such as that one when a
party brought an action before a court in a Contracting State for the
rescission or discharge of an international sales contract whilst an action
by the other party to enforce the same contract was pending before a
court in another Contracting State. Otherwise there was the possibility of
irreconcilable decisions in two different jurisdictions, one upholding and
enforcing the contract and the other striking it out.
40. The ECJ at paragraph 8 of its judgment stated:-"According to
its preamble, which incorporates in part the terms of article 220,
the Convention seeks in particular to facilitate the recognition and
enforcement of judgment of courts or tribunals and has strengthened in
the Community the legal protection of persons therein established. Article
21, together with article 22 on related actions, is contained in Section
8 of Title II of the convention; that section is intended, in the interests
of the proper administration of justice within the Community, to prevent
parallel proceedings before the courts of different Contracting States and
to avoid conflicts between decisions which might result therefrom. Those
rules are therefore designed to preclude insofar as is possible and from
the outset the possibility of a situation arising such as that referred to in
article 27(3), that is to say the non-recognition of a judgment on account
of its irreconcilability with the judgment given in a dispute between the
same parties in the state in which recognition is sought."
41. The ECJ went on to point out that in the procedural situation which
had arisen in that case the same parties were engaged in two legal
proceedings in different Contracting States which were based on the
same "cause of action", which in that case the ECJ held was the same
contractual relationship. The problem was whether those two actions had
the same subject matter when the first sought to enforce the contract and
the second sought its rescission or discharge. The question whether the
contract was binding lay at the heart of the two actions. A judgment given
in a Contracting State requiring performance of the contract would not be
recognised in the state in which recognition was sought if a court in that
state had given a judgment rescinding or discharging the contract. Such a
result restricting the effects of each judgment to the territory of the state
concerned would run counter to the objectives of the Convention which
was intended to strengthen legal protection throughout the territory of
the Community and to facilitate recognition in each Contracting State of a
judgment given in any other Contracting State.
42. The ECJ gave further guidance on the matter in "The Maciej
Rataj" [1995] All ER (EC228), an admiralty action in which a reference
was made to the ECJ by the English Court of Appeal in relation to article
21. In that case a cargo belonging to various principals was carried in bulk
under separate bills of lading from Brazil to Rotterdam and Hamburg by
a vessel owned by a Polish company. On delivery the cargo was found to
be damaged. The ship owners brought an action in Rotterdam against a
number of cargo owners for a negative declaration that the ship owners
were not liable for the damage. Later some of the cargo owners brought
proceedings in rem in London against the ship owner's vessel and another
vessel owned by the same company which was later arrested. The ship
owners contended that the English court should decline jurisdiction in
favour of the Netherlands Court under article 21 of the Convention since
the proceedings involved the same cause of action. Alternatively it was
contended that the proceedings should be stayed under article 22. (There
was also an issue not material in the present context whether articles 21
and 22 were not applicable because of the provisions of an international
convention of 1952 for the unification of rules relating to the arrest of
seagoing ships.) Having ruled that articles 21 and 22 of the Convention
did apply the ECJ ruled that on its true construction the term "cause of
action" in article 21 comprised "the facts and rule of law relied on as
the basis of the action." This equates a cause of action more closely to
what is understood by cause of action in domestic law as compared to
the wider use of the term in Gubisch. The ECJ concluded that the action
seeking to have a defendant held liable for causing damage and seeking
damages had the same cause of action as earlier proceedings brought by
the defendant seeking a declaration that it was not liable for the loss. In
the relevant portion of its judgment the European Court ruled:-
"37. The national court's fifth question is essentially whether or on a
proper construction of article 21 of the Convention an action seeking
to have the defendant held liable for causing loss and ordered to pay
damages has the same cause of action and same object as earlier
proceedings brought by that defendant seeking a declaration that he is
not liable for that loss.
38. It should be noted at the outset that the English version of article
21 does not expressly distinguish between the concepts of object and
"cause" of action. That language version must however be construed in
the same manner as the majority of the other langauge versions in which
that distinction is made (see Gubisch)
39. For the purposes of article 21 of the Convention "the cause of action"
comprises the facts and the rule of law relied on as the basis of the
action.
40. Consequently an action for a declaration of non-liability, such as that
brought in the main proceedings in this case by the ship owners and
another action such as that brought subsequently by the cargo owners on
the basis of shipping contracts which are separate but in identical terms
concerning the same cargo transported in bulk and damaged in the same
circumstances have the same cause of action.
41. The object of the action for the purposes of article 21 means the end
the action has in view.
42. The question accordingly arises whether two actions have the same
object when the first seeks a declaration that the plaintiff is not liable
for damage as claimed by the defendants, or the second, commenced
subsequently by those defendants seeks on the contrary to have the
plaintiff in the first action held liable for causing loss in order to pay
damages.
43. As to liability, the second action has the same object as the first since
the issue of liability is central to both actions. The fact that the plaintiff's
pleadings are couched in negative terms in the first action whereas in
the second action they are couched in positive terms by the defendant
who has become the plaintiff does not make the object of the dispute
different."
43. The ECJ went on to deal with article 22 stating that since the aim of
article 22 was to avoid the risk of conflicting judgments and thus facilitate
the proper administration of justice in the Community the term "related
actions" has to be interpreted broadly to cover all cases where there is
a risk of conflicting decisions even if the judgment could be separately
enforced and the legal consequences are not mutually exclusive.
44. It will often be difficult to determine whether proceedings in two
separate Contracting States "involve the same cause of action" (which
requires the court of the state in which the second set of proceedings
are brought to decline jurisdiction) or are to be categorised as "related
actions" (which give rise to a discretion in the court in that state to
decline jurisdiction).
45. It is clear that the parties to the Convention intended that there
should be a difference between the two situations. In his opinion in
Gubisch Advocate General Mancini compared and contrasted articles
21 and 22 and opined that article 21 was intended to be very strict,
concluding that the legislative traditions of so many of the signatory
states to the Convention
were so unfavourable to the concept of lis pendens that the courts of the
Contracting States would have complied with the obligation to decline
jurisdiction only if that obligation had been conditional on straightforward
and unequivocal criteria. He considered that the strong use of the
adjective "same" showed that the choice was dictated by a special policy
aim. The broad interpretation according to which the provisions should
also be applicable in the case of actions which are different though based
on the same legal circumstances ultimately confused matters which the
Convention was designed to keep apart namely related actions and lis
pendens. He concluded that the Italian claim for a declaration that the
contract of sale in that case was inoperative differed from the German
claim to enforce the contract but the actions were so closely connected
that the case fell within article 22.
46. The ruling of the ECJ did not adopt the approach of the Advocate
General on the facts of that particular case, clearly taking the view that
the claims in the German and Italian proceedings were in reality two sides
of the same coin and hence in reality raising the same cause of action for
the purposes of article 22. The ECJ ruling does not provide more general
guidance on distinguishing between cases falling within article 21 and
those falling within article 22. The comments of the Advocate General
are, however, instructive in highlighting the need in individual cases to
determine under which article an individual case comes and in pointing to
the conclusion that it must be a matter of degree in any case whether the
proceedings are essentially the same or merely related. It is pointed out
in Cheshire and North's Private International Law, 12th edition, that the
decision in Gubisch tends to break down the distinction between articles
21 and 22.
47. In determining what claims were being pursued in the Irish
proceedings and then determining whether they are the same cause of
action as raised in Northern Ireland we start with the difficulty that the
pleadings in the Dublin action had not gone beyond the widely worded
and generalised plenary summons. The affidavits filed in the interlocutory
injunction proceedings do not definitively oblige the plaintiff in the Irish
proceedings to include within the pleaded statement of claim allegations
of matters arising in Northern Ireland. Although reference is made to
events within Northern Ireland in generalised terms the information is of
background relevance to the injunctive relief being sought by the plaintiff
company at that stage. Where parties are in a contractual or fiduciary
relationship different breaches in different places and at different times
can give rise to separate causes of actions, a fact recognised by Order 11
rule 1(e) relating to claims in respect of breaches of contract committed
"within the jurisdiction" recognising the fact that separate breaches may
occur within or outside the jurisdiction. A claim for breach of a contract
within Northern Ireland will not have the same end in view or object as
a claim arising out of a breach of contract occurring within the Republic
even though both arise from the same contract. A general indorsement
on a writ of summons in Northern Ireland and a plenary summons in
the Republic under Order 18 rule 15 and Order 20 rule 6 of the Rules of
Court in Northern Ireland and the Republic leave it open to a plaintiff in
his statement of claim to "alter, modify or extend any claim made by him
in the indorsement". In the absence of evidence making it clear that the
Dublin proceedings included claims in respect of matters arising within
Northern Ireland the court cannot conclude that the Irish proceedings
necessarily involved the "same cause of action" for the purposes of article
21. That is a different question from the question whether the plaintiff
company should have pursued or was free to pursue the Northern Ireland
claims in the proceedings as instituted in Northern Ireland which raises
issues under article 22 of the Convention and in respect of the issue of
abuse of process.
THE ISSUE UNDER ARTICLE 22 OF THE CONVENTION
48. Having regard to the evidence adduced in this application it is clear
that the proceedings in the Republic of Ireland and in Northern Ireland
raise some inter-related and common issues of law and fact relating to
the contractual and fiduciary relationship between the plaintiff and the
defendants. Under article 22 where related actions (as defined by the
article and as interpreted by the ECJ in The Maciej Rataj) are brought in
courts of different Contracting States the court has a discretion to stay
its proceedings while actions are pending at first instance in another
Contracting State or alternatively to decline jurisdiction if the law permits
consolidation of related actions and the court first seised has jurisdiction
in both actions. The commonality of issues in the Republic of Ireland and
in Northern Ireland is such that there is a risk of irreconcilable judgments
resulting in the separate proceedings for as the European Court points in
The Maciej Rataj this may occur even if the judgments can be separately
enforced and their legal consequences are not mutually exclusive. I am
satisfied that under Irish law there is a power to consolidate related
actions and I am satisfied that the Irish Court would have jurisdiction to
hear the claims which the plaintiff company wishes to pursue through the
Northern Ireland proceedings, the defendants making it clear that they
have submitted to the jurisdiction of the High Court in Dublin to hear and
determine all issues between the parties.
49. Article 22 only comes into play while the actions are pending at first
instance. The Irish High Court has effectively dismissed the plaintiff's
claim and the proceedings are thus not pending at first instance in that
jurisdiction. Advocate General Mancini in Gubisch in commenting on
article 22, referring to the Jennard Report on the Convention points out
that the proceedings in question must be pending at the same level of
adjudication for otherwise the object of the proceedings would be different
and one of the parties might be deprived of a step in the hierarchy of the
courts.
50. Thus I do not consider that the court has power to stay the
proceedings or decline jurisdiction by reliance on article 22 of the
Convention.
THE ISSUE UNDER ARTICLE 26 OF THE CONVENTION
51. Mr Stephens in his argument submitted that O'Sullivan J's judgment
should be recognised under article 26 or in the alternative the
proceedings between the parties are res judicata.
52. At common law under the domestic law of Northern Ireland an
estoppel by res judicata necessitates proof that the previous decision was
a final and conclusive decision on the merits, that the parties were the
same and that the cause of action or issue before the court was identical
with that previously determined. The judgment in the Republic was not a
judgment on the merits nor can the court be clear what causes of action
the judgment actually encompassed since the general indorsement of the
writ left open to the plaintiff to widen or narrow the ambit of its claim.
53. The issue of recognition under article 26 can arise in three ways.
Firstly, in order for a judgment to be enforced under the Convention it
must be recognised. Secondly, recognition will apply on its own when a
judgment is used as a defence to a new action. Thirdly, recognition can
operate on its own in a more positive way, for example, to establish a
title to property or by way of set off. It appears that it does not have to
be shown that the judgment is final and conclusive or that the foreign
judgment was on the merits.
54. The judgment of the High Court in Dublin if upheld on appeal will
result in an order for costs against the plaintiff company which when
taxed will give rise to an enforceable judgment debt. This would fall to
be recognised in Northern Ireland and capable of enforcement in this
jurisdiction subject to the fulfilment of the relevant procedural rules.
Insofar as the judgment dismisses the plaintiff's claim as covered by the
proceedings in the Republic it would have to be recognised in Northern
Ireland to preclude the bringing of fresh proceedings pursuing the same
claim in this jurisdiction or otherwise the judgment in the Republic
dismissing the claim with costs might be inconsistent with a judgment
awarded in Northern Ireland finding in favour of the plaintiff company and
awarding it damages and costs which the plaintiff company could enforce
in the Republic. It would thus be essential to determine what matters the
plaintiff's claim in the Republic covered since those matters could not be
relitigated in Northern Ireland.
55. If the plaintiff company were to attempt to bring fresh proceedings
in the Republic such a claim would be inevitably dismissed as an abuse
of process. It is inconceivable in such circumstances that the court would
accept any argument that the plaintiff was free to bring fresh proceedings
contending that it intended in the initial writ to cover only some aspects
of its claims against the defendant and that the fresh proceedings covered
other aspects of the claim which it had not intended to pursue in the
first set of proceedings. If the plaintiff company successfully brings
proceedings in Northern Ireland to recover judgment in this jurisdiction,
recovers judgment and seeks the enforcement of the judgment in the
Republic against any assets of the defendants there, it is arguable that
the Irish Courts would be faced with a Northern Ireland judgment which
in effect conflicted with the judgment of the Irish Court dismissing the
earlier proceedings under a judgment which had the effect of precluding
the plaintiff from bringing fresh proceedings arising out of matters which
were actually or potentially encompassed within the original proceedings.
This is a novel and difficult point which does not appear to be covered by
authority. In view of my conclusions on the issue of abuse of process I do
not consider that I need to resolve the point.
ABUSE OF PROCESS
56. Lord Diplock pointed out in Hunter v Chief Constable of West Midlands
Police [1982] AC 529 at 536:-
"(This case) concerns the inherent power which any court of justice must
possess to prevent misuse of its procedure in a way which, although
not inconsistent with the literal application of its procedural rules, would
nevertheless be manifestly unfair to a party to litigation before it, or
would otherwise bring the administration of justice into disrepute among
right thinking people. The circumstances in which abuse of process can
arise are very varied; those which give rise to the instant appeal must
surely be unique. It would, in my view, be most unwise if this House were
to use this occasion to say anything that might be taken as limiting to
fixed categories the kinds of circumstances in which the court has a duty
(I disavow the word discretion) to excise this salutary power".
57. At common law the traditional view of the English Courts was that it
was not prima facie vexatious or an abuse of process to commence two
actions about the same subject matter in England and another jurisdiction
(Cohen v Rothfield [1919] 1 KB 410 at 414 per Scrutton LJ.) The
traditional common law approach has moved through a series of cases
leading to MacShannon v Rockwear Glass Ltd [1978] AC 795, the Abidin
Daver [1984] AC 398 and The Spiliada Maritime Corporation v Cansulex
Ltd [1987] AC 460 and it is apparent that the courts have moved away
from what Lord Diplock characterised as "judicial chauvinism" to a greater
recognition of the principles of judicial comity in the context of the law of
lis alibi pendens.
58. An example of the modern thinking is the case of Australian
Commercial Research and Development Ltd v ANZ McCaughan Merchant
Bank Ltd [1989] 3 All ER 65. In that case, the plaintiff a Queensland
company, wished to raise extra capital by placement of shares and in
1978 entered into agreement with the defendant, an English merchant
bank and five brokers for the placement of shares. The defendant and the
bank were subsidiaries of an Australian bank. A dispute arose out of the
performance of the contract. In July 1988 the plaintiff issued proceedings
in England against the defendant but not the brokers claiming repayment
of monies paid to the defendant for fees. In October 1988 the defendant
served a defence and counterclaim claiming entitlement to remuneration
on a quantum meruit. In the meantime the plaintiffs issued proceedings
in Queensland against both the defendant and the brokers claiming
damages for breach of contract. The plaintiff applied for a stay of the
counterclaim in the English proceedings and offered to stay the English
claim so as to permit the whole matter to be litigated in Queensland. Sir
Nicholas Browne-Wilkinson VC (as he then was) held that a plaintiff who
had initiated proceedings against the same defendant in two separate
jurisdictions in respect of the same subject matter was required to elect
which set of proceedings he wished to pursue. On the facts Queensland
was the appropriate forum for the trial of the action and the court gave
the plaintiff leave to discontinue the English proceedings. The learned
judge at 57 stated:-
"What we have in this case, and so far as I know it has not previously
arisen, is a case in which the same party has initiated proceedings in two
separate jurisdictions, those proceedings raising either at the present
time or inevitably in the future exactly the same issues. The plaintiff
having itself invoked the two jurisdictions now applies for a stay of the
counterclaim (which naturally arises out of the claim) on the terms that
it merely stays its own existing action in this country. In my judgment
where a plaintiff seeks to pursue the same defendant in two jurisdictions
in relation to the same subject matter, the proceedings verge on the
vexatious. I am not suggesting in any sense that the plaintiff in this case
was being deliberately vexatious but the outcome is vexatious."
59. The maxims rei publicae interest ut sit finis litium and nemo debet
bis vexari are widely accepted in various European court systems and
represent guiding principles in the conduct of litigation. It is generally to
be assumed that a party should, save in exceptional circumstances, bring
forth his entire claim against his opponent at one time and the courts
will endeavour to ensure that parties litigate their inter-related disputes
at the one time in the interests of justice expedition and convenience.
In the context of the duty on a party to rely on all available defences in
litigation in the Australian High Court in Port of Melbourne Authority v
Anshun Property Ltd [1981] 147 CLR 589 (discussed in my recent decision
in Ulster Bank Ltd v Bell & Ors (unreported)) the majority judgment of
Gibbs CJ Mason and Archer JJ stated:-
"... there will be no estoppel unless it appears that the matter relied
upon as a defence of the second action was so relevant to the subject
matter of the first action that it would have been unreasonable not to
rely on it. Generally speaking it would be unreasonable not to plead a
defence if, having regard to the nature of the plaintiff's claim and its
subject matter it would be expected that the defendant would raise the
defence and thereby enable the relevant issues to be determined in the
one proceeding. In this respect we would need to record that there are a
variety of circumstances some referred to in the earlier cases why a party
may justifiably refrain from litigating an issue in one proceeding yet wish
to litigate the issue in other proceedings."
(italics added)
60. In approaching the question whether the institution of the Northern
Ireland proceedings is an abuse of process a number of factors must be
taken into account.
(a) Under the plenary summons as issued in the Republic and in the
light of the defendant's unconditional appearance it was open to the
plaintiff to pursue those matters which it now wishes to pursue in the
Northern Ireland litigations. While the Northern Ireland writ includes
some additional matters these are matters which could easily have been
added into the earlier proceedings by way of amendment to the Irish
proceedings.
(b) That the plaintiff company was likely to include those matters in the
Irish proceedings if those proceedings had continued is apparent from the
affidavit evidence filed by the plaintiff in the injunction application.
(c) A plaintiff should ordinarily bring his full case against the defendant
at the one time so as to avoid unnecessary duplication of proceedings,
repetition of evidence and the incurring of unnecessary costs (see Anshun
referred to above and the authorities discussed in Ulster Bank Ltd v Bell
& Ors), bearing in mind that the key word in this context is "ordinarily"
since justice in given situations may lead to the conclusion that a plaintiff
should not be faulted in any given situation for not including a particular
aspect of a claim.
(d) The Irish Court had jurisdiction and competence to deal with the
matters occurring within Northern Ireland affecting the contractual and
fiduciary relationship between the parties in this jurisdiction. It was
argued that a subpoena could not issue out of the Irish Court to compel
the attendance of witnesses from Northern Ireland (such as witnesses
from the Department of Economic Development). I am, however, satisfied
that the adduction of evidence relating to events in Northern Ireland
would not have presented any insuperable difficulties to the plaintiff if the
action had continued in the Republic and I consider that the suggestion of
procedural difficulties represent something of an afterthought on the part
of the plaintiff.
(e) The inference to be drawn from the timing and the nature of the
Northern proceedings was that the plaintiff's decision to issue the
proceedings in this jurisdiction was brought about by the difficulties facing
the plaintiff in the future progress of the Irish proceedings as a result of
the security for costs order.
(f) The plaintiff has no visible means or assets and indeed may be
insolvent. It pursued litigation in Dublin (and continues the appeal to
the Supreme Court) knowing that the defendants have no prospect of
recovering costs against the plaintiff in those proceedings. It has no
prospect of meeting an order for costs in this jurisdiction if the claim here
were to continue but be unsuccessful. It is thus seeking to pursue two
sets of proceedings when one would have been appropriate at a time
when it knows that it cannot afford to pay the defendants' costs in either
set of proceedings if the defendants are successful.
(g) K. has refused to fund the litigation in the Republic and has refused
to give any undertaking to meet the costs of the proceedings in Northern
Ireland if the action proceeded and the defendants succeeded. It is clear
that the costs of the action in Northern Ireland, if it is allowed to be
pursued, will be very substantial.
(h) While it would be open to the court, if the action were to be permitted
to be continued in this jurisdiction to make an early order for security for
costs, (a fact recognised by the plaintiff in the course of argument) the
plaintiff and K. have failed or refused to indicate whether security would
be provided or how such security would be met. A reasonable inference
to be drawn from that is that the plaintiff could not comply with any
reasonable order for security.
61. The inference which on a balance of probabilities I draw from the
evidence and the circumstances leading to the bringing of the Northern
Ireland proceedings is that the plaintiff originally intended to include all its
claims against the defendants arising out of its contractual and fiduciary
relationship with the defendants in the Republic and in Northern Ireland
and that it instituted the Northern Ireland proceedings when it was faced
with its present difficulties as a result of the order for security for costs.
62. Against the background of the increasing emphasis on judicial comity
particularly within the European Union and between the Contracting
States to the Brussels Convention, the principles relating to abuse of
process are sufficiently wide and flexible to enable the court in this
jurisdiction to prevent a party such as the plaintiff instituting fresh
proceedings in circumstances such as prevail in the present case.
63. Although spoken in a different age, the remarks of Bowen LJ in
McHenry v Lewis (1882) 22 Ch Div 357 are apposite when applied to the
plaintiff's proceedings.
"I agree that it would be most unwise... to lay down any definition of what
is vexatious or oppressive or to draw a circle so to speak, round this court
unnecessarily and to say that it will not move outside it. I would much
rather rest on the general principle that the court can and will interfere
whenever there is vexation and oppression to prevent the administration
of justice being perverted for an unjust end."
64. I consider that the Northern Ireland proceedings represent an abuse
of process and accordingly I direct that the proceedings be struck out.
ANNEX I
THE IRISH PLENARY SUMMONS
BETWEEN:
65. L. LIMITED formerly known as
U.N.R. LIMITED
Plaintiff
and
S. MO., S M. & ASSOCIATES LIMITED,
P.OIL AND GAS LIMITED AND THE MINISTER FOR
TRANSPORT, ENERGY AND COMMUNICATIONS
Defendants
66. The Plaintiff's claim is for:
1. An Injunction (including where necessary, an Interim and/or an
Interlocutory Injunction) preventing the First Named Defendant, her
servants or agents, from breaching the terms of her contract with the
Plaintiff.
2. An Injunction (including where necessary, an Interim an/or an
Interlocutory Injunction) preventing and/or restraining the First Named
Defendant from breaching her fiduciary duties as a director of the Plaintiff.
3. An Injunction (including where necessary, an Interim and/or an
Interlocutory Injunction) preventing the First Named Defendant, her
servants or agents, from using corporate opportunities without the
consent and/or involvement of the Plaintiff.
4. A declaration that the activities of the First Named Defendant her
servants or agents, in applying for a petroleum prospecting licence
in the N.W. Ltd Carboniferous Region, is a breach of the First Named
Defendant's fiduciary duties to the Plaintiff and that it has deprived the
Plaintiff of a corporate opportunity to which it was entitled.
5. A declaration that the Second and Third Named Defendants in applying
for a petroleum prospecting licence with the assistance of the First Named
Defendant are engaged in a conspiracy to damage the interests of the
Plaintiff.
6. An Injunction (including where necessary an Interim and/or an
Interlocutory Injunction) preventing the First, Second and Third Named
Defendants from using or misusing information which is properly the
property of the Plaintiff in relation to the N.W. Ltd Carboniferous Region.
7. A declaration that any petroleum prospecting licence for the N.W. Ltd
Carboniferous Region issued by the 4th Named Defendant is the property
of the Plaintiff and is held on trust for the Plaintiff by the Second and
Third Named Defendants.
8. An Injunction restraining the Fourth Named Defendant from issuing a
licence to the 2nd and 3rd Named Defendants pending the determination
of these proceedings.
9. A declaration that any licence issued by the Fourth Named Defendant
should only be issued by the Fourth Named Defendant to the Plaintiff.
10. A declaration that the information rights in relation to the N.W. Ltd
Carboniferous Basin are the property of the Plaintiff.
11. As against the First Named Defendant:
(i) Damages for breach of contract;
(ii) Damages for breach of fiduciary duties to the Plaintiff;
(iii) Damages for breach of confidential information;
(iv) Damages for conversion of the Plaintiff's proprietary information;
(v) Damages for breach of intellectual property rights;
(vi) Damages for intentional interference with the economic interests of
the Plaintiff;
(vii) Interest pursuant to the Courts Act.
12. As Against the Second and Third Named Defendants:
(i) Damages for conspiracy;
(ii) Interest pursuant to the Courts Act.
13. Further and other relief.
14. Costs.
ANNEX II
THE NORTHERN IRELAND WRIT
67. The Plaintiff's claim is for:
68. As against the First-named Defendant:
1. Damages for loss and damage sustained by the Plaintiff by reason
of the breach of contract of the First-named Defendant in and about an
agreement in writing dated 25th July 1991 whereby the First-named
Defendant was engaged by the Plaintiff as a consultant and, further, by
reason of the breach of contract and for breach of fiduciary duty of the
First-named Defendant as a director of the Plaintiff.
2. Alternatively, an account of all profits made by the First-named
Defendant by reason of the breach of fiduciary duty of the First-named
Defendant as aforesaid and an order for payment by the First-named
Defendant to the Plaintiff of the sum so found upon the taking of an
account.
69. As against the First and Second-named Defendants:
3. An injunction to restrain the Defendants, and each of them, from
reproducing without the licence of the Plaintiff, any seismic tapes, maps,
diagrams or any other printed matter derived therefrom and relating to
the N.W. Ltd Carboniferous Basin of Ireland without the express consent
of the Plaintiff, and in particular from reproducing, parting with possession
of or using same in support of any petroleum prospecting licence or
application(s) for same.
4. An order for delivery up to the Plaintiff of all seismic tapes, and all
maps, diagrams or any other printed matter derived therefrom, and all
copies of same relating to the N.W. Ltd Carboniferous Basin of Ireland,
and in the possession, power, custody or control of the Defendants.
5. An inquiry as to damages for infringement of copyright or, at the option
of the Plaintiff, an account of profits earned by the Defendants by reason
of their reproduction or dealings with the seismic tapes, maps and other
documents derived therefrom.
6. An order for payment of all sums found due upon taking such inquiry or
account, together with interest thereon, pursuant to the provisions of the
Judicature (Northern Ireland) Act 1978.
7. Further and other relief.
8. Costs.
1998 No 811