A recent High Court decision involved consideration of whether the court properly had jurisdiction to hear a case based on the principles of the EU Brussels I Regulation (44/2001). While the decision does not establish any novel principle, it is a useful restatement of a generally understood position.
Background
In Coleman v Offley Insurance Services Limited(1) the
defendant, an insurance broking firm registered in the United
Kingdom, brought a motion seeking an order to set aside service of
proceedings and/or to strike out the summons on the basis that the
Irish court did not have jurisdiction to hear and determine the
plaintiffs' claims under the Brussels I Regulation. In the
summons, the plaintiffs sought damages for "breach of
contract, negligence, breach of duty (including breach of statutory
duty and breach of fiduciary duty)" and "a declaration
that [they] are entitled to an indemnity from the
defendant".
Although no further details of the claim appeared in the summons,
the summons did contain an endorsement to the effect that:
"The Court has power under Council Regulation (EC) No.
44/2001 of 22 December 2000 to hear and determine the
plaintiff's' claims and the Court shall assume jurisdiction
to hear the said claim under the provisions of Article 5(1),
Article 5(3) of the Regulation."
The endorsement effectively tried to cover two bases, in that
Article 51 provides for jurisdiction in matters relating
to a contract in the courts for the place of performance of the
obligation in question, while Article 5(3) provides for matters of
tort that jurisdiction arises in the courts where the harmful event
occurred.
Facts
The defendant had acted as an insurance broker for the
plaintiffs in respect of various types of insurance since the
1990s. The first two plaintiffs purchased a house in County Dublin,
but continued to reside in England and took out unoccupied
buildings insurance which was placed through the defendant's
brokerage. Subsequently, building works had to be carried out;
despite initial difficulties, those works were covered through
insurance obtained through the defendant from August 2 2001 and
renewed until February 14 2003, when the building works were
substantially completed. From February 2004 the plaintiffs
organised their own insurance for the property.
However, by January 2005 the adjoining owner to the property
commenced proceedings arising out of the works, alleging damage to
his property from the plaintiffs' building works, as well as
distress suffered as a consequence. The defendant was advised of
the claim in May 2005 and said that he was instructed to obtain the
necessary information about the claim from the plaintiffs'
solicitor so that the claim could be notified to the insurer. The
plaintiffs alleged that following their request to notify the
insurer of the claim, the defendant either failed to do so or
failed to do so adequately, leading to the loss suffered by them,
and claimed from the defendant as part of the proceedings.
Decision
The question for determination was whether the plaintiffs'
claim was a freestanding claim in tort (negligence), or whether it
was founded in contract or in respect of a tort relating to a
contract. At the outset, Judge Peart acknowledged that if the
latter were the case, the proper place for performance of the
contract in question would be the United Kingdom and the courts
there properly should have jurisdiction. Conversely, if the claim
were simply a freestanding claim in tort only, then the Irish court
had jurisdiction on the basis of Article 5(3).
On the facts, and having considered affidavit evidence and heard
submissions from both sides, the court was satisfied that the claim
was a claim in tort only and that it stood free of, and unrelated
to, any contractual claim. It found that each time the plaintiffs
sought that the defendant put in place a contract of insurance, a
contract was entered into and was fulfilled upon the issue of the
relevant contract by the insurer. Moreover, there was no suggestion
that the policy of insurance put in place by the defendant was
other than what the plaintiffs had instructed him to do.
The court noted that the claim being made here was that after the
plaintiffs had informed the defendant of a claim by their
neighbour, the defendant had failed to notify or properly notify
the insurer. However, under the insurance policy that obligation
fell on the plaintiffs and the defendant had no contractual duty to
do so. Insofar as the defendant may have been asked to notify the
insurers and have taken on such responsibility and failed to do so,
it is arguable that he owed a duty of care. If he was negligent in
that regard and the loss suffered as a consequence were
foreseeable, then he could be liable to the plaintiffs in
negligence.
Therefore, the court concluded that the only claim that the
plaintiffs could be said to have against the defendant arising from
the circumstances put before it was under the broad head of
negligence. The court suggested that this was premised on the basis
of a relationship of proximity between the parties, the assumption
of a duty of care by the defendant to notify the insurer and an
alleged breach of that duty by failing to do so, along with
foreseeable loss arising therefrom.2
Thus, the court felt this was a classic tort claim in negligence
and that it came within Article 5(3). Consequently, the
defendant's motion would be struck out, but the plaintiff's
pleadings would need to be revised to confine the claim advanced to
a claim in tort.
Comment
As identified above, this decision does not establish any novel
principle of law. Notwithstanding that no new principle of law is
involved, it does show that the Irish courts will adopt a
straightforward and sensible construction of the jurisdiction
provisions thereof, which should give parties certainty that Irish
courts will determine jurisdiction in accordance with the
relatively clear provisions of the Brussels I Regulation.
Footnotes
1. 2012 [IEHC] 303.
2. In essence, the test derived from Caparo Industries plc v Dickman, [1990] 2 AC 605.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
