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The Irish High Court has confirmed that parties seeking to raise
jurisdictional points under the Brussels Regulation must do so
clearly and at the earliest available opportunity or risk losing
their entitlement to argue the points.
In Transportstyrelsen v Ryanair1, the
Swedish Transport Agency sought to recover from Ryanair certain
security charges introduced in compliance with an EC
Regulation. Proceedings were issued in 2009. Ryanair entered
an appearance, filed affidavit evidence, consented to the matter
being sent to plenary hearing, sought and obtained an order for
further and better particulars and filed a counterclaim. It
did all of this without challenging the jurisdiction of the Irish
court. However, in September 2011, before the matter came for
trial, Ryanair applied to have the case dismissed on grounds either
(i) that the Transport Agency was seeking to recover a foreign
revenue or public law debt or (ii) that the proceedings should be
stayed on the basis of forum non conveniens.
The application failed. The Court held that the charges
were not taxes or public law debts, because the funds raised were
to be disbursed to Swedish airports to cover costs of security
controls. Accordingly the rule that courts have no jurisdiction to
enforce the penal, revenue or other public laws of a foreign state
was not engaged2.
So far, so unremarkable. The real interest in the case
lies in what the judge had to say in relation to the timing of
jurisdiction arguments:
First, the plaintiff sought to rely on the Brussels
Regulation3. The judge relied on authority
that the plaintiff could only do so if it had relied on the
Regulation at the outset of the matter in its initial
pleadings4. For that reason, he decided the case
not on the basis of the Regulation but on Irish conflicts of law
principles.
Secondly, Ryanair sought to argue that the steps it took in the
proceedings (including the entry of an unconditional appearance)
could not confer jurisdiction on the Irish court if it did not, as
a matter of law, have such jurisdiction in the first place. That
argument failed: Ryanair's procedural conduct was consistent
with a waiver of objection to jurisdiction; it had
"engaged with and accepted the jurisdiction";
and was thereby precluded from objecting to
jurisdiction.
Thirdly, in rejecting Ryanair's forum non conveniens
argument, the judge was plainly swayed by the fact that the
proceedings were at an advanced stage and the case was ready for
trial.
These three points point to a single conclusion. Any
party, whether plaintiff or defendant, should raise a jurisdiction
argument at the earliest available opportunity. Failure to do
so may close off potential avenues of argument, no matter what the
merits or the formal position under the Regulation or the common
law.
There remains a procedural difficulty for defendants. As
Ryanair pointed out, the Irish court rules make no mention of
entering an appearance solely to contest jurisdiction, and the
relevant High Court form provides no opportunity for a defendant to
challenge jurisdiction. Until these shortcomings are
addressed in revised rules, defendants should rely on the guidance
of the Irish Supreme Court in Campbell5 and
make clear their objection to jurisdiction by a letter or a notice
of motion accompanying the appearance.
Footnotes
1. Unreported, [2012] IEHC 226, judgment of Hedigan J of
4 May 2012
2. In stating the rule, the judge relied on the English
decision in Municipal Council of Sydney v Bull [1908] 1 KB 7
and the Irish case of Bank of Ireland v Meenaghan [1994] 3
IR 111; there is no suggestion in the judgment that the scope or
application of the rule in Ireland would be different from that in
England.
3. i.e. Regulation 44/2001 on jurisdiction and
enforcement of judgments in civil and commercial
matters
4. Spielberg v Rowley and others, unreported,
Irish High Court 26 November 2004, Finlay Geoghegan J
5. Campbell International Trading House Limited v
Peter van Aart and Natur Pur GmbH [1992] 2 IR 305.
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