High Court of Ireland Decisions

1. This matter comes before this Court by way of Appeal on the Order of His Hon. Judge A.T. Murphy dated the 18th day of December, 1996 dismissing the second named Defendant's Application which came before him by way of Notice of Motion dated 24th April, 1996 for an Order in terms following:-

2. The background facts to this matter can be briefly summarised. The Plaintiff in this matter resides in the city of Cork. In July 1993 he purchased from the first named Defendant, an Irish registered company, trading in Cork, a second hand Volkswagen Passat Estate car for the sum of £30,500. He alleges that it was a term of the said sale, express or implied that:

3. In the Endorsement of Claim in the Civil Bill the Plaintiff claims that there was a total breach of the said express or implied terms, that the vehicle had travelled some 97,000 miles at the time of purchase and was seriously defective.

4. The second named Defendant is a company, not registered within this jurisdiction and carrying on business at Aviemore in Scotland. The Plaintiff alleges in the said Endorsement of Claim as against this company, that on October 19th, 1995, when he was driving the said vehicle in Scotland on route to London, the cylinder head gasket failed. He brought the car into the second named Defendant's premises at No.62 Grampian Road, Aviemore, Inverness-shire, Scotland and requested them to carry out the necessary repairs. This they did for the sum of £819. The said repairs were negligently carried out and proved defective. The car broke down once more on route to London and by virtue of the last breakdown, serious damage was done to the engine. It is now in storage at or near London.

5. The Plaintiff instituted proceedings before the Cork Circuit Court and named the first Defendant, who is undoubtedly domiciled in Cork, and the second named Defendant who is unquestionably domiciled in Scotland.

6. The Plaintiff claimed to do so pursuant to the provisions of the Convention on Jurisdiction and Enforcements of Judgments in Civil and Commercial Matters signed at Brussels on September 27th, 1968 as enacted by Section 3 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988.

7. In brief, the Plaintiff claims to vest the Circuit Court in Cork with jurisdiction pursuant to the provisions of Article 6.1 of the Brussels Convention.

8. Article 6.1 provides:-

9. Article 6.1 of the Brussels Convention has been the subject matter of interpretation by the European Court of Justice in Case 189/87, Athanasios Kalfelis -v- Bankhaus Schröder and Others .

10. It was there held that Article 6:-

11. At the date of institution of the proceedings in the Endorsement of Claim, the Plaintiff has alleged:

12. This is because the two Actions are dependent on entirely different facts which arise under entirely different circumstances at an entirely different time. The Judgments in the two Actions have no necessary dependence one upon the other.

13. Accordingly, in my opinion, there is no connection "of such a kind that it is expedient to determine the Actions together in order to avoid the risk of irreconcilable Judgments resulting from separate proceedings".

14. At the outset of the proceedings, Counsel for the Plaintiff requested that should the Court conclude that the Plaintiff was in error in initiating these proceedings within this jurisdiction and accordingly finding that the Circuit Court in Cork should decline jurisdiction, that this Court would grant a reference to the European Court of Justice pursuant to Article 177 of the Treaty establishing the European Community as amended as a Treaty on European Union. In my opinion, it is not necessary to obtain a decision of the European Court to enable this Court to give Judgment for the simple reason that the very Article of the Brussels Convention has been the subject matter of interpretation by the European Court of Justice in Case 189/87, Athanasios Kalfelis -v- Bankhaus Schröder and Others - already referred to in this Judgment and in the course of that Judgment has specifically held:-

15. The condition in question is a matter of fact and this Court has in this Judgment decided as a matter of fact that the said condition is not satisfied by the Plaintiff. Accordingly, I decline the Plaintiff's said request and I further find that the Circuit Court in Cork should decline jurisdiction and that the second named Defendant should be struck out of the proceedings and that all costs incurred by the second named Defendant, when taxed and ascertained should become costs in the cause in the Action between the Plaintiff and the first named Defendant and be in the discretion of the trial Judge.