Minister for Agriculture, Food and Forestry v Alte Leipziger Versicherung
Aktiengesellschaft t/a Alte Leipziger
1998 No. 67
Supreme Court
14 April 2000
[2001] 1 I.L.R.M. 519
(Keane CJ, Barron, Murray, McGuinness and Hardiman JJ)
14 April 2000
Subject: Civil procedure
Keywords: Final orders
Practice and Procedure—Order of the High Court—Whether High Court order is interlocutory or
final—Whether further evidence may be given without special leave on appeal—Jurisdiction of Courts
and Enforcement of Judgments Act 1988 (No. 3)—Rules of the Superior Courts 1986, O.11A, rr. 1, 8,
O.12, rr. 3, 26, O.58, rr. 8, 12—Rules of the Superior Courts (No. 1) (SI No. 14 of 1989)
Facts
The plaintiff minister commenced proceedings against the defendant insurers claiming an indemnity in
respect of the loss of meat carcasses in a cold store fire in 1992. The basis of the plaintiff's claim was
the contract of insurance allegedly entered into between the defendant, acting through a wholly
owned subsidiary, and the plaintiff's insurance broker. The plaintiff alleged that a cover note dated 28
October 1991 constituted the contract of insurance.
The defendant brought a motion claiming an order pursuant to O.12, r.26 of the Rules of the Superior
Courts 1986 setting aside the service of proceedings on the ground that the alleged insurance policy
was the subject of a clause conferring sole jurisdiction to hear disputes on the Tribunal of Commerce
in Paris. Laffoy J delivered her judgment on 6 March 1998 and concluded that the general conditions
in the insurance policy were incorporated in the cover note. The High Court also held that neither
Article 12a(1)(b) nor Article 12a(4) of the Brussels Convention were applicable to the insurance
effected under the cover note and that, accordingly, the plaintiff was entitled to sue the insurers under
Article 8 of the convention. The defendant appealed to the Supreme Court.
After the service of the notice of appeal, a number of further affidavits were filed on behalf of the
parties. There was a conflict of evidence as to, inter alia, the nature of the insurance that was
intended to be effected by the cover note, and as to whether, under the relevant provisions of French
law, the nature of the insurance intended to be effected under the cover note was one that fell within
the provisions of Article 12a(1)(b) or Article 12a(4). Immediately before the oral hearing of the appeal,
a supplementary written submission on behalf of the defendant contended that the appropriate course
of action for the Supreme Court to take was to remit the matter to the High Court so that the conflicts
of fact could be resolved, either by an oral hearing or by the cross-examination of the deponents upon
their affidavits. The plaintiff submitted that, as the instant appeal was not an appeal from an
interlocutory judgment or order, within the meaning of O.58, r.8 of the Rules of the Superior Courts,
the*520 evidence contained in the affidavits sworn and filed subsequent to the hearing in the High
Court could be admitted on special grounds only and then only with the special leave of the Supreme
Court obtained on application by a motion on notice setting forth the special grounds. In reply the
defendant submitted that the instant appeal was an appeal from an interlocutory judgment or order
within the meaning of O.58, r.8 and that, accordingly, the defendant was not obliged to seek the
special leave of the Supreme Court for the admission of further affidavits.Page1
The issue for consideration by the Supreme Court was whether the order of the High Court against
which the defendant brought its appeal was ‘an interlocutory judgment or order’ or ‘a final judgment or
order’ within the meaning of O.58, r.8 of the Rules of the Superior Courts.
Held, by the Supreme Court (Barron and Hardiman JJ; Murray and McGuinness JJ concurring; Keane
CJ dissenting) in dismissing the appeal:
(1) Ultimately, the question to be answered was whether the order was of such a nature that
further evidence may be adduced on appeal without leave.
(2) The order in the instant case was in its nature final. It was not a final order because it was
not a decision on the merits. But it would never have been said to be interlocutory in nature.
An interlocutory application is one which is purely procedural in nature and an interlocutory
order is an order made on foot of an interlocutory application. A final order would normally
dispose of the action or proceedings. Here the order did not readily fall into either category.
(3) The present application dealt with the issue as to whether a particular cause of action was
justiciable in this jurisdiction. The determination of such an issue should be final, subject to
appeal. To treat it otherwise was in effect to allow the issue to be tried twice. In all the
circumstances, the order appealed from was for the purposes of O.58, r.8 a final order.
(4) The court should focus on whether the issue of jurisdiction, and not the general issues in
the litigation, had been finally determined for the purpose of the action by the judgment of the
High Court. The order of the High Court was a final order on the question of jurisdiction.
Kutchera v. Buckingham International Holdings Ltd [1988] IR 61 considered.
Per Keane CJ (dissenting): An order which does no more than reject a preliminary objection as to
jurisdiction cannot be said to final in its nature and the policy considerations which have led the courts
to impose specific limitations on the admission of additional evidence in the Supreme Court were
wholly absent. Accordingly, the order made by the High Court in this case was interlocutory in its
nature.
Cases referred to in judgments
Bozson v. Altrincham UDC [1903] 1 KB 547 *521
Dale v. British Coal Corporation [1992] 1 WLR 964
Ladd v. Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745
Lynagh v. Mackin [1970] IR 180
Kutchera v. Buckingham International Holdings Ltd [1988] IR 61; [1988] ILRM 1, 501
Page, In re, Hill v. Fladgate [1910] 1 Ch 489
Salaman v. Warner [1891] 1 QB 734
Salter Rex & Co. v. Ghosh [1971] 2 QB 597; [1971] 3 WLR 31; [1971] 2 All ER 865
Shubrook v. Tufnell (1882) 9 QBD 621
Toal v. Duignan (No. 2) [1991] ILRM 140
White v. Brunton [1984] QB 570; [1984] 3 WLR 105; [1984] 2 All ER 606
Representation
Mary Finlay SC and Brian Murray for the plaintiff/respondent
Bill Shipsey SC and Gavin Ralston for the defendant/appellant
KEANE CJ
delivered his judgment on 14 April 2000 saying: These proceedings were instituted by the
plaintiff/respondent (hereafter ‘the minister’) against the defendant/appellant (hereafter ‘the insurers’)Page2
claiming, inter alia, a declaration that he is entitled to an indemnity in respect of the loss of meat
carcasses alleged to have been stored in a cold store belonging to United Meat Packers in
Ballaghaderreen, Co. Roscommon which was destroyed by fire on 7 January 1992. The basis of the
claimed indemnity is a contract of insurance alleged to have been entered into between the insurers,
acting through their wholly owned French subsidiary, Office de Couscription d'Assurance Transport
SA (hereafter ‘OCAT’) and the minister's insurance broker, DB Agencies SA, Monaco.
On 8 November 1994, an appearance headed ‘Memorandum of appearance to contest the jurisdiction
of the court’ was entered for the insurers, which stated that:
such appearance is limited to an appearance for contesting the jurisdiction of the court to hear
and determine the plaintiff's claim, pursuant to the Jurisdiction of Courts and Enforcement of
Judgments Acts 1988 to 1993 and without prejudice to such appearance the defendant reserves
the right in the alternative to defend these proceedings.
The insurers then brought a motion claiming an order pursuant to O.12, r.26 of the Rules of the
Superior Courts setting aside the service of the proceedings on the defendant on the ground that the
insurance policy (if any) upon which the minister relied was the subject of a clause conferring sole
jurisdiction to hear disputes between the parties upon the Tribunal de Commerce, Paris.
This application was grounded on affidavits of Andre Louis Simon, who described himself as an
expert in French marine and transport insurance practice, and of Camille Hamen, who was the
Director General of OCAT until his retirement in 1995.
*522
The document alleged by the minister to constitute the contract of insurance was a cover note dated
28 October 1991. The insurers claimed that such cover as was provided under that document was
subject to general conditions contained in three policies known as the ‘French policies’. These
included a provision that the insurers could only be sued before the Tribunal of Commerce of the
place of underwriting of the policy, i.e. Paris. It was contended on behalf of the insurers that the
jurisdiction of the Irish courts to determine any claim brought on foot of the alleged contract of
insurance was excluded by this provision.
Replying affidavits were filed on behalf of the Minister by Anthony Van Hagen, a French lawyer, and
Padraig Smith, an Irish insurance broker. The motion then came on for hearing in the High Court
before Laffoy J.
In the High Court, it was submitted on behalf of the minister, inter alia, that:
(a) the general conditions contained in the French policies, and in particular the condition
giving exclusive jurisdiction to the Tribunal of Commerce at Paris, were not incorporated in the
cover note;
(b) alternatively, if the conditions were so incorporated, the clause purporting to give exclusive
jurisdiction to the French Tribunal was of no effect, having regard to Article 8 of the Brussels
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
matters (hereafter ‘the convention’) given the force of law in this State under the Jurisdiction of
Courts and Enforcement of Judgments (European Communities) Act 1988.
Article 8 of the convention provides that
an insurer domiciled in a contracting state may be sued: …
…
(2) in another contracting state, in the courts for the place where the policyholder is domiciled ….
On behalf of the insurers, it was submitted that the general conditions in the French policies were
incorporated in the cover note and that Article 8 of the convention did not apply to the insurance
allegedly affected, having regard to Article 12(5) of the convention.
Article 12 of the convention, so far as relevant provides that:Page3
the provisions of this section [including Article 8] may be departed from only by an agreement on
jurisdiction: …
(5) which relates to a contract of insurance in so far as it covers one or more of the risks set out
in Article 12a.
Article 12a sets out the risks referred to in Article 12(5) as follows: *523
(1) Any loss of or damage to:
(b) goods in transit other than passengers' baggage where the transit consists of or includes
carriage by … ships or aircraft; …
(4) Any risk or interest connected with any of those referred to in 1. to 3. above.
On behalf of the insurers, it was submitted that the French policies were policies of marine insurance
within the meaning of Article 12a(1)(b) and that, to the extent that the policies extended to the storage
of goods, that was a ‘risk or interest’ connected with ‘loss of or damage to … goods in transit’ within
the meaning of Article 12a(1)(b).
In reply, it was submitted on behalf of the minister that the terms of the cover note itself and the
surrounding circumstances made it clear that the insurance being effected was in respect of the
storage of the goods in the plant at Ballaghaderreen. As already noted, the only affidavits before the
High Court dealing with the factual background to the dispute were those to which I have already
referred.
In a reserved judgment delivered on 6 March 1998, the learned High Court judge concluded that the
general conditions in the French policy were incorporated in the cover note. She also held, however,
that neither Article 12a(1)(b) nor Article 12a(4) were applicable to the insurance effected under the
cover note and that, accordingly, the minister was entitled to sue the insurers under Article 8 of the
convention. From that judgment, the insurers have now appealed to this Court.
After the service of the notice of appeal, a number of further affidavits were filed on behalf of the
insurers and the minister respectively. Initially, on behalf of the insurers, a further affidavit of Camille
Hamen was filed, followed by an affidavit of Jacques Max Lassez, a French lawyer. In response,
affidavits were sworn on behalf of the minister by David Gresty, the Director of DB Agencies SA, who
had taken part in the discussions with Mr Hamen leading to the issuing of the cover note, Ronan
O'Flaherty, an assistant principal officer in the minister's department who had responsibility at the
relevant time for the purchasing of beef into intervention and Hubert Groutel, a French professor of
law. Further affidavits in reply were sworn by Mr Hamen and Mr Lassez.
It is unnecessary at this stage in the hearing of the appeal to consider in detail the contents of these
affidavits. It is sufficient to say that there is a conflict of evidence between Mr Hamen on the one hand
and Mr Gresty on the other hand as to, inter alia, the nature of the insurance that was intended to be
effected by the cover note. They also disclose a conflict of evidence between Mr Lassez on the one
hand and Professor Groutel on the other hand as to whether, under the relevant provisions of French
law, the nature of the insurance intended to be effected under the cover note was one that fell within
the provisions of Article 12a(1)(b) or Article 12(4).
*524
Written submissions had been filed on behalf of the parties in accordance with the directions of this
Court. In addition, however, immediately before the oral hearing of the appeal, a supplementary
written submission on behalf of the insurers was lodged in which the conflicts of evidence disclosed
by the affidavits filed subsequent to the lodging of the notice of appeal were set out in detail and it
was submitted that the appropriate course of action for this Court to take was to remit the matter to
the High Court so that the conflicts of fact could be resolved, either by an oral hearing or by the
cross-examination of the deponents upon their affidavits.
On behalf of the minister, Ms Finlay SC submitted that, this not being an appeal from an ‘interlocutory
judgment or order’ within the meaning of O.58, r.8 of the Rules of the Superior Courts, the evidence
contained in the seven affidavits sworn and filed subsequent to the hearing in the High Court could be
admitted on special grounds only and then only with the special leave of this Court obtained uponPage4
application therefor by a motion on notice setting forth the special grounds. (It should be noted in
passing that at a stage when the case was in the list in this Court for the purpose of a date being fixed
for the hearing, no objection was taken by counsel on behalf of the minister to the filing of additional
affidavits and, indeed, as already noted, replying affidavits were in any event filed on his behalf.
However, the court on the hearing of the appeal indicated that, if the minister now wished to argue
that this was not evidence which should be admitted without special leave pursuant to O.58, r.8, the
court would not treat the minister as necessarily bound by any concession apparently made at a stage
when the case was in the list for mention only.)
In reply, Mr Shipsey SC on behalf of the insurers submitted that this was an appeal from an
interlocutory judgment or order within the meaning of O.58, r.8 and that, accordingly, he was not
obliged to seek the special leave of the court for the admission of the further affidavits sworn by Mr
Hamen and Mr Lassez.
O.58, r.8 of the Rules of the Superior Court provides as follows:
The Supreme Court shall have all the powers and duties as to amendment and otherwise of the
High Court, together with full discretionary power to receive further evidence on questions of fact,
such evidence to be either by oral examination in court, by affidavit, or by deposition taken before
an examiner or commissioner. Such further evidence may be given without special leave upon
any appeal from an interlocutory judgment or order or in any case as to matters which have
occurred after the date of the decision from which the appeal is brought. Upon any appeal from a
final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall
be admitted on special grounds only, and not without special leave of the Supreme Court
(obtained upon application therefor by motion on notice setting forth such special grounds) ….
It is accepted on behalf of the insurers that the evidence contained in the affida *525 vits filed in the
High Court does not relate to matters which occurred after the date of the High Court decision.
Accordingly, unless the judgment and/or order of the High Court can be regarded as an interlocutory
judgment and/or order as distinct from a final judgment or order, the special leave of the court will be
required for the admission of the affidavits. Before considering the question as to whether the
judgment and order of the High Court under appeal in the present case was an interlocutory judgment
or order or a final judgment and order, it is relevant to refer to what appears to be the rationale of the
relevant provisions of rule 8.
It is clear from the opening words of the rule that this Court has a ‘full discretionary power’ to receive
further evidence upon questions of fact. However, save in the case of an interlocutory judgment or
order or matters which have occurred after the date of the decision appealed from, the discretion is
one which, in its exercise, is subject to certain limitations which have been identified in the relevant
authorities.
In Lynagh v. Mackin [1970] IR 180, this Court adopted the following passage from the judgment of
Denning LJ in Ladd v. Marshall [1954] 1 WLR 1489 (at p. 1491):
To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it
must be shown that the evidence could not have been obtained with reasonable diligence for use
at the trial; secondly, the evidence must be such that, if given, it would probably have an
important influence on the result of the case, though it need not be decisive; thirdly, the evidence
must be such as is presumably to be believed, or in other words, it must be apparently credible,
though it need not be incontrovertible.
It seems reasonable to suppose that the imposition of those limitations upon the admission of new
evidence on the hearing of an appeal in this Court reflects a principle of public policy that there should
be finality in litigation and that a successful litigant is not to be deprived of his judgment because of
the existence of evidence which could have been, but was not, led in the High Court.
Interlocutory orders were treated as being in a different category, since in such cases there is no
question of depriving the successful litigant of his judgment. Such judgments or orders, of their nature,
whether they take the form of injunctions, orders for discovery or interrogatories or particulars, etc. do
not determine finally any of the issues in the particular proceedings. In considering whether the order
appealed from in this case was interlocutory in its nature, it is obviously relevant to bear in mind thatPage5
since, if it is upheld, the action will proceed to a full hearing in the High Court, it cannot be said in any
sense to have finally determined the issues in the proceedings. At the same time, it is of such a
character that, had the application on behalf of the insurers been suc *526 cessful, it would have been
final, since the proceedings would have ended then and there.
The only Irish authority on the point to which we were referred was Toal v. Duignan (No. 2) [1991]
ILRM 140. That was a case of alleged medical negligence, in which an appeal was brought by the
defendants against a High Court order refusing to dismiss proceedings against the defendants on the
grounds that such a length of time had elapsed between the events on which the proceedings were
based and the time of the application that it would be unjust for the defendants to be called upon to
defend themselves. In the course of his judgment, Finlay CJ said (at p. 144):
This Court ruled at the commencement of this appeal that the applications were interlocutory in
nature and that it was appropriate that in the interests of justice further evidence should be
adduced by both sides, both of whom were anxious to have the court consider further affidavits
which they sought to file.
There does not appear to have been any written judgment giving the reasons for the ruling in question
and, accordingly, the passage in the judgment of the learned Chief Justice is of limited assistance in
the present case.
There are, however, a number of English authorities on the matter. They indicate that, in that
jurisdiction, until new rules of court were enacted in recent times, a divergence of view had emerged
in the Court of Appeal as to the appropriate criteria for determining whether an order should be
treated as interlocutory or final for the purpose of the rules.
The sequence of cases begins with Shubrook v. Tufnell (1882) 9 QBD 621. In that case, an appeal
was brought from a judgment of the court below on a case stated. In the Court of Appeal, Jessel MR
with whom Lindley LJ agreed, said that, if the Court of Appeal differed from the court below, final
judgment would be entered for the defendant and there would be an end to the action. He accordingly
concluded that it was to be treated as a final order and the appeal placed in the general list rather
than set down in the interlocutory list. It is clear from the report that, had the case been decided by the
Court of Appeal in favour of the plaintiff, it would have been referred back to the arbitrator who had
stated the case. It is, accordingly, important to note that the decision proceeded upon the basis that,
in cases where the order appealed from could, depending on the result of the appeal, finally
determine the proceedings, even though the order actually made did not, it was not to be regarded as
interlocutory in its nature. That approach was described in a more recent decision of White v. Brunton
[1984] QB 570 as reflecting the ‘order approach’ to the issue.
In Salaman v. Warner [1891] 1 QB 734, a different view was taken. That was an appeal from a
decision of a divisional court that an action should be dismissed because the statement of claim did
not disclose any cause of action. *527 Shubrook v. Tuffnell was not cited to the court and Lord Esher
MR proposed a different test which was assented to by the other members of the court, Fry and
Lopes LJJ. He said at p. 735:
The question must depend on what would be the result of the decision of the Divisional Court,
assuming it to be given in favour of either of the parties. If their decision, whichever way it is
given, will, if it stands, finally dispose of the matter in dispute, I think for the purposes of these
rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the
matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final,
but interlocutory.
This was categorised in White v. Brunton as the ‘application approach’.
In Bozson v. Altrincham Urban District Council [1903] 1 KB 547, the order appealed from was one
dismissing an action for breach of contract because of the determination in favour of the defendants
of a preliminary issue as to liability. It was contended on behalf of the defendants, who relied on
Salaman v. Warner that this was an interlocutory order and that, accordingly, the appeal was out of
time. Lord Alverstone CJ with whom the Earl of Halsbury LC agreed, said at p. 548:
Does the judgment or order, as made finally dispose of the rights of the parties? If it does, then IPage6
think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an
interlocutory order.
The court thus, in effect, disapproved of the ‘application approach’ adopted in Salaman v. Warner.
In In re Page, Hill v. Fladgate [1910] 1 Ch 489 the order appealed from was an order dismissing an
action on the grounds that it was frivolous and vexatious. Again, the issue on the appeal was whether
it was out of time because the order appealed from was not an interlocutory order. The court
unanimously concluded that it was not an interlocutory order, but there is no reference in the
judgments to the decisions in Salaman v. Warner and Bozson v. Altrincham Urban District Council.
The topic was considered again by the English Court of Appeal in Salter Rex & Co. v. Ghosh [1971] 2
QB 597. In that case, the appeal was from an order in the County Court by a judge refusing to order a
new trial of proceedings. The issue was as to whether the appeal was out of time, because the order
was an interlocutory order. Lord Denning MR, with whom the two other members of the court agreed,
having referred to the conflicting views expressed in Salaman v. Warner and Bozson v. Altrincham
Urban District Council said (at p. 601): *528
Lord Alverstone was right in logic but Lord Esher was right in experience. Lord Esher's test has
always been applied in practice ….
So I would apply Lord Esher's test to an order refusing a new trial. I look to the application for a
new trial and not to the order made. If the application for a new trial were granted, it would clearly
be interlocutory. So equally, when it is refused, it is interlocutory. It was so held in Anglo-Auto
Finance (Commercial) Ltd v. Dick (4 December 1967, CA; Bar Library Transcript No. 320A) and
we should follow it today.
This question of ‘final’ or ‘interlocutory’ is so uncertain that the only thing for practitioners to do is
to look up the practice books and see what has been decided on the point. Most orders have now
been the subject of decision. If a new case should arise, we must do the best we can with it.
There is no other way.
Finally, in White v. Brunton the Court of Appeal considered the position where a question as to liability
was heard as a preliminary issue and was decided against the plaintiff. If this were to be treated as an
interlocutory order, the plaintiff would have required the leave of the court of first instance or the Court
of Appeal to appeal. Sir John Donaldson MR concluded that the court was now clearly committed to
the application approach as a general rule and that Bozson v. Altrincham Urban District Council could
no longer be regarded as an authority for applying the order approach. However, he also held that
where, as in that case, there was a ‘split trial’, questions of liability being tried before and separately
from issues as to damages, either party should have an unqualified right to appeal at the end of the
trial of the first issue, since to hold otherwise would be to place an indirect fetter on the ability of
courts to order a split trial: such orders should not deprive the parties of their unfettered right to an
appeal which they would enjoy in the case of a unified trial of all the issues.
While there has, accordingly, been a divergence of approach in England, it will be seen that, in
general, the difference of judicial opinion has been as to whether one looks at the order as made or
the nature of the application when one is determining whether it is final or interlocutory in its nature. If
the second approach is adopted, then one looks to whether the order, if upheld, will finally dispose of
the case, whichever way it goes. If so, it is to be treated as final. If, however, the order, if given one
way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on,
then it is regarded as not final, but interlocutory.
If that represents the state of the law in England and is the law which should be adopted in this
jurisdiction, then it is immaterial whether one adopts the ‘order’ approach or the ‘application’ approach
in the present case. The order as made , was not final in its nature, since, if it is upheld, the action will
proceed to finality: hence, on that view, it is properly regarded as an interlocutory order. If the
application approach is adopted, the result is the same, since this *529 was not a case in which the
decision, whichever way it was given, would, if upheld, finally dispose of the issues in dispute.
I, accordingly, reach the conclusion that, whichever of these divergent approaches is adopted, the
result is the same: the order in this case was interlocutory in its nature. I have borne in mind thatPage7
Shubrook v. Tufnell is an authority which appears as a matter of first impression irreconcilable with
either the order as made approach or the application approach, since in that case the order as made
was interlocutory in its nature. However, that decision is plainly not a satisfactory authority for the
proposition contended for on behalf of the minister in the present case, since the only issue that arose
was whether the case should be put in the interlocutory list or the general list: the court concluded that
it should be placed in the general list, since the order of the Court of Appeal might finally dispose of
the case.
It is, accordingly, unnecessary in this case to come to any conclusion as to whether ‘the order’
approach or the ‘application’ approach is to be preferred, since, on either view, the order under appeal
in this case was interlocutory in nature. As the authorities demonstrate, in the absence of any rule
defining in detail what are to be ‘interlocutory orders’, the courts usually find themselves having to
decide each case in the context of the particular order under consideration. An order, such as the one
in the present case, which does no more than reject a preliminary objection as to jurisdiction, cannot
be said to be final in its nature and the policy considerations which have led the courts to impose
specific limitations on the admission of additional evidence in this court are wholly absent.
I, accordingly, conclude that the judgment and/or order of the High Court in this case was an
interlocutory judgment and/or order and that the additional evidence on affidavit may be admitted
without the special leave of the court.
BARRON J
(Murray and McGuinness JJ concurring): The plaintiff in these proceedings claims against the
defendant on foot of a contract of insurance said to be evidenced by a cover note dated 28 October
1991. The defendant contests the jurisdiction of the courts to hear the matter and submits that by
virtue of the cover of a particular risk by the contract of insurance, if any, the sole jurisdiction to hear
the matter is vested in the courts of France.
The application to have these proceedings dismissed upon that ground was heard by Laffoy J on 6
March 1998. The sole issue on this appeal is whether or not that order was a final order or an
interlocutory order for the purposes of O.58, r. 8 of the Rules of the Superior Courts 1986.
O. 58, r. 8 of the Rules of the Superior Courts 1986 provides, inter alia:
Such further evidence may be given without special leave upon any appeal from an interlocutory
judgment or order or in any case as to matters which have *530 occurred after the date of the
decision from which the appeal is brought. Upon any appeal from a final judgment or order such
further evidence (save as to matters subsequent as aforesaid) shall be admitted on special
grounds only, and not without special leave of the Supreme Court (obtained upon application
therefor by motion on notice setting forth such special grounds).
Since the order of the High Court the parties in the present proceedings have filed additional
affidavits. No leave has been sought for such filing. Accordingly, an application for special leave to file
such affidavits should have been brought unless the order appealed from was an interlocutory order.
The tests to determine whether an order is interlocutory or final as applied for the purpose of English
Rules of Court dealing with leave to appeal have been referred to as either the ‘order approach’ or the
‘application approach’. In the former, you look to the order made on the application; while in the latter
you look to the orders which might have been made on the application. In the former case, if the order
disposes of the proceedings, it is a final order; whereas, in the latter case, if an order might have been
made continuing the proceedings, then even though the order disposed of the proceedings, it is an
interlocutory order.
It is not necessary to refer to all the English cases. They deal with the question whether leave to
appeal is needed. In that jurisdiction, it is from an interlocutory order not from a final order. The main
authority for the order approach is Bozson v. Altrincham Urban District Council [1903] 1 KB 547. That
was a case where the trial had been split. The issue as to liability was heard first, the issue as to
damages, if it arose, was left over. It was sought to appeal the finding on liability. It was held to be a
final order. Lord Alverstone CJ in agreeing that the order appealed from was a final order said at p.
548:
It seems to me that the real test for determining this question ought to be this: Does the judgmentPage8
or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be
treated as a final order; but if it does not, it is then, in my opinion an interlocutory order.
However, the order approach was specifically disapproved by the English Court of Appeal in White v.
Brunton [1984] 1 QB 570 where Sir John Donaldson said at p. 573:
The court is now clearly committed to the application approach as a general rule and Bozson's
case … can no longer be regarded as any authority for applying the order approach.
Nevertheless, I am not sure that the order of Laffoy J would be regarded in England as an
interlocutory order. Having disapproved the order approach, Sir *531 John Donaldson then
considered an order on a split trial and accepted that it was a final order in respect of which no leave
to appeal would be required. His reasoning for so indicating is set out in the following passage on p.
573 as follows:
That the division may not have run exactly along the line dividing liability from quantum is, I think,
immaterial. The decisive feature is that the ‘preliminary issue’ was not, when analysed, an issue
preliminary to a final hearing, but the first part of a final hearing.
Taking the words ‘an issue preliminary to a final hearing’ as being of the essence of the test, it follows
that the two types of application upon which the application approach is founded in that case fall into
this category.
In Salaman v. Warner [1891] 1 QB 734, the application was for a new trial. If it was refused, that was
an end of the matter. Similarly, with an application in default of defence in both cases, the application
depending upon the result was an issue preliminary to a final hearing.
Interlocutory orders are dealt with specifically by O.50 of the 1986 Rules. Prima facie therefore the
term interlocutory judgment or order contained in O.58 would relate to such orders. Nevertheless the
list cannot be exhaustive since there are many orders regarded as interlocutory which are not
included in O.50.
There are no reported cases dealing with preliminary issues as to jurisdiction. The only case cited to
us from our own jurisdiction was Toal v. Duignan (No. 2) [1991] ILRM 140 in which it was accepted by
the court that an application to dismiss the proceedings against a number of named defendants was
an interlocutory one.
In my view, the order in the instant case was in its nature final. It was not a final order because it was
not a decision on the merits. But it would never have been said to have been interlocutory in nature.
In my view, an interlocutory application is one which is purely procedural in nature and an
interlocutory order is an order made on foot of an interlocutory application, whereas a final order
would normally dispose of the action of proceedings. The order in the instant case does not readily fall
into either category.
It is an order which disposes finally, subject to appeal, of a substantive right collateral to the main
issue in the proceedings. On the other hand a final order determines the rights of the parties in
relation to the subject matter of the proceedings, while an interlocutory order determines the rights of
the parties in the context of the proceedings as a whole. In the case of a motion to dismiss for failure
to plead a cause of action or for want of prosecution, no rights are being finally determined. The order
either determines that there is nothing to be litigated or that the right to have a matter litigated has
been forfeited.
In the present instance, the right which has been affected by the order is the *532 right of the
defendant to object to the jurisdiction of the court. It is not an order which deals with the merits of the
cause of action, but neither is it an order made in the context of that cause of action. An interlocutory
order is an order made on an application which in effect prepares the way for the final hearing which I
believe to be the view of the English Court of Appeal in White v. Brunton. The present order has no
such effect. It is much more of the nature of a final order than of an interlocutory one.
Ultimately, however the question to be answered seems to me to be, is the order of such a nature thatPage9
further evidence may be adduced on appeal without leave? An interlocutory application deals with the
substance of the proceedings but without deciding it. Equally, it does not infringe the principle that
there should be finality in litigation. For this reason there can be no objection on either head to further
evidence being given on the hearing of the appeal. It may well be a matter to be dealt with by an order
for costs.
The present application deals with the issue as to whether a particular cause of action is justiciable in
this jurisdiction. In my view the determination of such an issue should be final, subject to appeal. To
treat it otherwise is in effect to allow the issue to be tried twice. That is quite clear in the instant case.
Counsel for the appellant accepts that there would be new issues of fact arising out of the fresh
evidence which would have to be determined in the High Court.
In all the circumstances of this case I consider that the order appealed from is for the purposes of
O.58, r.8 a final order. I would disallow the appeal.
HARDIMAN J
(Murray and McGuinness JJ concurring): The facts of this matter and the history of the proceedings
are comprehensively set out in the judgment of the learned Chief Justice and it is unnecessary to
repeat them here.
The issue
The issue in this case is whether the order against which the defendant has brought its appeal is ‘an
interlocutory judgment or order’, or on the other hand is ‘a final judgment or order’ within the meaning
of O.58, r.8 of the Rules of the Superior Courts.
Upon the determination of this issue depends whether either party is entitled to adduce further
evidence by way of affidavit without special leave. Although this Court has not heard any argument
beyond what has been directed to the issue identified above, it appears that that issue is a significant
one in the circumstances of the case.
The pleadings
For the purpose of this issue, it is necessary only to refer to certain aspects of the pleadings.
The general endorsement of claim of the plenary summons issued on 23 *533 December 1993
grounds the court's jurisdiction to hear the case in the following way:
6. This Honourable Court has power under the Jurisdiction of Courts and Enforcement of
Judgments (European Communities) Act 1988 to hear and determine the within claim
pursuant to Article 5(1), Article 8 and Article 9 of the Brussels Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters.
7. No proceedings between the parties concerning the same cause of action is pending
between the parties in another contracting state.
This part of the endorsement of claim demonstrates that the proceedings are governed by the 1968
Convention and the 1988 Act, as these instruments are defined in O.11A, r.1 and r.8 of the Rules of
the Superior Courts. The whole of O.11A was incorporated into the Rules by virtue of SI No. 14 of
1989, shortly after the passage of the 1988 Act. The parts of the endorsement of claim quoted above
are pleaded so as to comply with O.11A, r.2, permitting service of proceedings out of the jurisdiction
without leave of the court if, but only if, the summons complies with the following conditions:
(1) The claim made by the summons is one which by virtue of the 1988 Act the court has
power to hear and determine; and
(2) No proceedings between the parties concerning the same cause of action is pending
between the parties in another contracting state; andPage10
(3) Either:
(a) The defendant is domiciled at any contracting state, or
(b) The proceedings commenced by the originating summons are proceedings to which the
provisions of Article 16 of the 1968 Convention concerning exclusive jurisdiction apply, or
(c) The defendant is a party to an agreement conferring jurisdiction to which the provisions
of Article 17 of the 1968 Convention concerning prorogation of jurisdiction apply.
Contesting the jurisdiction in O. 11A proceedings
The same statutory instrument referred to above, SI No. 14 of 1989 inserted a new r. 2 in O.12,
dealing with ‘appearance’. O.12, r.2(3) provides:
An appearance to an originating summons in respect of proceedings issued for service out of the
jurisdiction under O.11A, r.2 ( including an appearance entered solely to contest jurisdiction by
virtue of Article 18 of the 1968 Convention ) shall be entered …,
and there follows certain time limits.
S. 3 of the 1988 Act gives the force of law in the State to certain conven *534 tions including the 1968
Convention as amended. Article 18 of that Convention provides:
Apart from jurisdiction derived from other provisions of this convention, a court of a contracting
state before whom a defendant enters an appearance shall have jurisdiction. This rule shall not
apply where appearance was entered solely to contest the jurisdiction or where another court has
exclusive jurisdiction by virtue of Article 16.
It appears that the insertion of the new O.12, r.2 brought about a considerable change in the scheme
of the rules in relation to contests as to jurisdiction. Prior to 1989 the rules appear to have envisaged
dealing with such matters by the bringing of a motion under O.12, r.26 either to set aside the service
or to discharge an order authorising service. R.26 envisages this motion being brought prior to
entering an appearance. The practice, however, was to enter a ‘conditional appearance’, itself a
procedure provided for in the Rules of the Superior Courts of England and Wales, but not in our rules.
This course was followed in Kutchera v. Buckingham International Holdings Ltd [1988] IR 61; [1988]
ILRM 1, 501. This was a case where the plaintiff had obtained an order giving him liberty to serve a
summons outside the jurisdiction and the defendant entered a conditional appearance for the purpose
of contesting jurisdiction only. In a note to the head note of the report, p. 63 the following is said:
While O.12 appears to require that a defendant's notice of motion must be served before he has
entered an appearance, the practice is for defendants to enter a ‘conditional appearance’ prior to
the service of the motion. This conditional appearance is expressed to be ‘without prejudice’ and
recites that the appearance was entered ‘for the purpose of contesting jurisdiction only’.
Conditional appearances are specifically provided for in the corresponding English Rules of Court
but do not appear in the Rules of the Superior Courts, and their status in this jurisdiction has not
been judicially determined.
The combined effect of s. 3 of the 1988 Act and the new O.12, r.2 is expressly to recognise that an
appearance may be entered solely to contest the jurisdiction.
That is what was done in this case. A ‘memorandum of appearance to contest the jurisdiction of the
court’ was filed on 8 November 1994 and its terms are set out in the judgment of the learned Chief
Justice. The plaintiff's solicitor was notified of it on the same day by being sent a copy. The matter
came before the High Court on foot of the defendant's notice of motion of 20 June 1995 seeking:
… Pursuant to O.12, r.26, setting aside the service of the proceedings herein on the defendant;
on the grounds that the insurance policy (if any) upon which *535 the plaintiff relies is the subjectPage11
of a clause conferring sole jurisdiction to hear disputes between the parties on the Tribunal de
Commerce Paris and in the premises the plaintiff has contracted to commence any proceedings
in that court and that accordingly this Honourable Court does not have jurisdiction to hear and
determine the plaintiff's claim against the defendant.
It was on that issue that the contest in the High Court proceeded and the affidavits filed were directed
solely to it. The order of the High Court of 6 March 1998 records that: ‘the court doth refuse the relief
sought by the defendant’.
Interlocutory or final
The foregoing provisions seem to me to distinguish the present appeal from any of authorities cited to
us. Nonetheless I shall say something about these cases in deference to the arguments addressed.
The question of whether particular orders are interlocutory or final seems to have troubled the courts
in England and Wales for well over a hundred years. Judicial approaches have diverged to the point
of inconsistency. In the 1980s, an effort in England to resolve the matter through Rules of Court which
attempted a comprehensive definition was dramatically unsuccessful. I agree with the learned Chief
Justice that the only Irish authority which has been cited, Toal v. Duignan (No. 2) [1991] ILRM 140, is
of limited assistance only for the reasons which he gives.
In my view the English decisions are also of strictly limited assistance in the context of determining
the present case. In part, this is because none of them deal with the problem this case presents,
where a single issue arises for independent determination on foot of a specific statutory procedure.
None of the English cases cited, in my view, are remotely analogous and another United Kingdom
authority to which I shall refer is only imperfectly so. Over and above this, the English cases manifest
perhaps too great an anxiety to evolve a general rule covering all sorts of dissimilar situations, and
are too concerned with the result of taking one view or another in any specific case.
These views are strikingly confirmed by the remarkably indecisive judgment of Buckley LJ in one of
the cases cited, In re Page, Hill v. Fladgate [1910] 1 Ch 489. An order had been made dismissing an
action on the grounds that it was frivolous and vexatious. The issue was whether the appeal was out
of time, as it would be only if the order were an interlocutory order. Buckley LJ acquiesced in the
decision of his two colleagues that the order was interlocutory, but he said (at p. 494):
I yield my judgment to theirs without saying that I am completely satisfied with the reasons for the
view that this is an interlocutory order.
Commenting on the state of the authorities as they then were he said (at p. *536 493):
The rules are so expressed and the decisions are so conflicting that I confess I am unable to
arrive at any conclusions satisfactory to my own mind as to whether this is an interlocutory or a
final order. It is plain that many orders which prima facie are final are not final but are
interlocutory for the purposes of appeal [and] there are many cases in which orders have been
held to be interlocutory because something remains to be done to give effect to them, although in
one sense they are final orders. This, however, is an order in favour of the defendants and it
brings this action altogether to an end. To my mind it would be reasonable to say that it is a final
order. But I do not think I am entitled to found myself on that, because there have been many
decisions in which orders apparently final have been treated as interlocutory.
Buckley LJ ended his judgment with a plea which has not been heeded and an observation which is
still true in many cases:
But I desire to say that in my opinion it is essential that the proper authority should lay down plain
rules as to what are interlocutory orders, but as matters now stand it is the fact that it is
impossible for the suitor in many cases to know whether an order is interlocutory or final.
In his judgment in this case the Chief Justice has thoroughly set out the diverse and sometimesPage12
inconsistent English authorities and I agree with him that, generally speaking the difference of judicial
approach has been as to whether one looks to the order as made, or to the application for the order,
and to ask in either case if the order itself or the application which ever way it is decided , will finally
dispose of the case.
While it is possible to state the core of the divergence in the English authorities with some clarity it
seems to me that both the approaches which they have adopted are open to criticism. This, indeed,
was recognised by Denning MR in Salter Rex & Co. v. Ghosh [1971] 2 QB 597. Contrasting the
‘order’ approach as propounded by Lord Alverstone in Bozson v. Altrincham Urban District Council
[1903] 1 KB 547 with the ‘application’ approach propounded by Lord Esher in Salaman v. Warner
[1891] 1 QB 734 where he said (at p. 735):
Lord Alverstone was right in logic but Lord Esher was right in experience. Lord Esher's test has
always been applied in practice … so I would apply Lord Esher's test to an order refusing a new
trial.
In so expressing himself, Lord Denning was invoking the authority of Justice Oliver Wendell Holmes
who famously said that the ‘life of the law is not logic but experience’. But Holmes J did not, of course,
attempt to put the two into *537 complete antithesis as Lord Denning does. In a later passage in the
same judgment, which almost echoes Buckley LJ's perplexity, he said (at p. 601):
This question of ‘final’ or ‘interlocutory’ is so uncertain that the only thing for practitioners to do is
to look up the practice books and see what has been decided on the point. Most orders have now
been the subject of decision. If a new case should arise, we must do the best we can with it.
There is no other way.
This is not an approach either commendable to logic or suggestive of any consistency of experience.
I think the fundamental flaw in both these approaches lies in the requirement that the order, or the
application (depending on which approach one takes) must finally dispose of the case as a whole if it
is to be final and not interlocutory. In my view, it is quite sufficient if the order in question finally
disposes of a particular issue between the parties, at least where that issue is discretely raised by
some proper procedure.
Another English authority
There is some support for the view just expressed in yet another English authority, though I do not
expressly ground my opinion on it. This is Dale v. British Coal Corporation [1992] 1 WLR 965. There,
the plaintiff had been injured in an accident in a coal mine in 1972 but did not issue his proceedings
until 1989. Under a statutory procedure available in England, he sought a declaration that the
limitation period should not apply to his action. The defendant issued a summons claiming the setting
aside of a plaintiff's writ on the basis that it was statute barred. A district registrar directed that these
issues be referred to and tried by a High Court judge. Blofeld J granted the plaintiff leave to proceed,
together with a direction that the limitation period should not apply. The defendants appealed and a
preliminary issue on the hearing of the appeal was as to whether the decision had been an
interlocutory one, so that the defendants ought to have sought leave to appeal, which they had not
done.
This authority deals (incidentally from our point of view) with the brave attempt made in the former
O.59, r.1(a) of the English Rules to define comprehensively a final, as opposed to an interlocutory,
order. Unfortunately but understandably this attempt degenerated into circularity and the Court of
Appeal found itself confronted with a rule different provisions of which treated Blofeld J's
determination in quite inconsistent ways.
More relevantly for our purposes, the Court of Appeal eventually treated his determination as final on
the following basis (at p. 967 per Dillon LJ):
The effect of the determination on limitation by the judge in the present case is to determine
finally any question of limitation in these proceedings. It would have so determined any question
of limitation , in fact, whichever way the judge *538 had decided the issues before him, because ifPage13
he had held that the Act of 1980 was not to be thus disapplied under s. 33, then the claim would
inevitably have failed (emphasis added).
This approach seems to me to be sound, quite independently of the surrounding discussion about the
conflicting English rules. The court held that the mode of determination was irrelevant if in fact the
issue was finally determined for the purpose of the hearing in question. Its eventual conclusion was
that (at p. 967):
If the effect is that an issue was finally determined for the purposes of the action, then the
determination would, it would seem, count as a final judgment or order ….
It is clear that the procedures invoked in Dale's case have no precise counterpart in this jurisdiction.
Nevertheless the case seems to me to make a more useful analogy to the present facts than any of
the other cases cited. There, as here, the court had before it only the discrete issue as to whether the
originating document or service thereof should be set aside, or directions given to validate it. This
situation is closer to the present circumstances than any of the other authorities cited.
It is interesting to note that Dale's case was somewhat critically received because the decision was
felt to involve ignoring one of the two inconsistent English rules. It seems to me that it had to do this if
the matter was to be determined at all. I am happy to endorse the comment made upon it by Dr
Adrian Zuckerman in the All England Reports Annual Review for 1993. Having quoted the
contradictory provisions of the English O.59 he said:
The Court of Appeal cut through this circularity by holding that an order determining an issue as
to limitation was a final order since there was a determination of the issue which was a distinct
part of a final judgment or order by virtue of para. (4). The decision does not sit easily beside the
wording of the order since it seems to empty para. 6(ff) of almost any meaning. But it does make
sense to regard a decision on limitation as final because it is quite independent of the merits of
the cause of action in question and should be got out of the way conclusively and finally as early
as possible.
A Jurisdiction Issue
It seems to me that a jurisdiction issue, too, is quite independent of the merits of the cause of action
and should be got out of the way conclusively and finally as early as possible. I believe that the court
should focus on whether the jurisdiction issue, and not the general issues in the litigation, have been
finally determined for the purpose of this action by the judgment of Laffoy J. The *539 virtues of this
approach seem to me to apply a fortiori to, and indeed to be specifically mandated by, the procedural
context of this appeal. The issue of jurisdiction arises for immediate determination by virtue of a
special procedure whereby no other issue is raised. This is the procedure of the limited appearance.
The position is thus clearer, the issue more precisely knit, and more expressly isolated from any other
issue which might arise, than in any of the authorities to which we have been referred. Those cases
feature split trials of liability and of damages, a motion to dismiss an action as vexatious, a motion to
dismiss on a point of law, and other special circumstances. None are to my mind at all usefully
analogous to that arising here. Article 18 allows for the joining of issue on the limited question of
jurisdiction and the order made after this has been done seems to me to be an order which is (subject
only to appeal) final on that issue, and that was the only issue before the High Court.
I believe that this conclusion is strongly supported by a consideration, by way of example, of the case
already referred to Kutchura v. Buckingham International Holdings Ltd [1988] IR 61;[1988] ILRM 1,
501. In that case, the issue of jurisdiction was raised by the somewhat informal procedure described
earlier in this judgment. The High Court discharged the order authorising service out of the jurisdiction
but was reversed after elaborate argument in this Court. If the order of Laffoy J in this case is to be
regarded as interlocutory then so too must the orders of the High Court and this Court on appeal in
Kutchura. But so to regard those orders would empty the term ‘interlocutory’ of any meaning because
those decisions concluded the question of jurisdiction in that case as finally as it could be concluded.
I believe that the approach I have proposed arises naturally from the Article 18 procedure and the
amended rules which followed from it, and from the underlying logic of separating the fundamentalPage14
question of jurisdiction from many other matters which will arise only if jurisdiction is accepted. I am of
the view that it is unnecessary to apply either of the tests emerging from the English authorities
because the procedure involving the invocation of Article 18 and the service of a motion under O.12,
r.26 is sui generis.
Conclusion
I believe that the order of Laffoy J is a final order on the question of jurisdiction, subject only to
appeal. The consequence of this is that further affidavits can be admitted only on special grounds with
special leave of this Court to be obtained after an application of the kind envisaged by O.58, r.8.
Representation
Solicitor for the plaintiff/respondent: Chief State Solicitor
Solicitors for the defendant/appellant: Whitney Moore & Keller
Jarlath Fitzsimons Barrister
© Thomson Reuters (Professional) Ireland Limited.
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